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The Supreme Court and the governing regime in political time

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The Supreme Court and the governing regime in political time

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THE SUPREME COURT AND THE

GOVERNING REGIME IN POLITICAL TIME

by

Dave Bridge

A Dissertation Presented to the
FACULTY OF THE USC GRADUATE SCHOOL
UNIVERSITY OF SOUTHERN CALIFORNIA
In Partial Fulfillment of the
Requirements for the Degree
DOCTOR OF PHILOSOPHY
(POLITICS AND INTERNATIONAL RELATIONS)

May 2010

Copyright 2010 Dave Bridge

ii
Dedication

To all my teachers and professors who made a difference,

Thank you.

iii
Acknowledgements

I am grateful and lucky to have had the support of so many people throughout my
education. My family deserves first mention for their emotional support. I could not
have proceeded without their encouragement. My friends and colleagues deserve
recognition too. They have been with me through thick and thin.
USC has contributed financial assistance. Thanks go out to the Politics and
International Relations program, as well as the Center for International Studies, which
allowed me to hire Claire Han, the world’s best research assistant.
I owe so much to the educators who went the extra mile for me. Ranging from
high school to graduate school, I have had the privilege to learn from a number of
outstanding teachers. A very special thank you to Jill Sullivan, who taught me much
about myself. Steve Campbell, Mike Marcos, John Peebles, Rick Piper, Jan Rhodes,
Gordon Rouse, and Art Sullivan all cared more than they had to. Terry Seip was the best
undergraduate mentor I could ask for. Ann Crigler, Paul Lerner, Geoffrey Middlebrook,
Anthony Kammas, Mark Kann, and Karen Orren were all instrumental in my
development as a scholar. A final thanks to my dissertation committee: Jeb Barnes, Phil
Ethington, and Howard Gillman. They made sure graduate school was a humbling yet
constructive, trying but worthwhile experience.
I was so fortunate to have crossed paths with so many talented teachers and
professors. This dissertation is really a testament to their abilities, care, and loyalty. I
could not have done it without their support. They all made such a difference in my life.
And for that reason, I dedicate it to them.

iv
Table of Contents

Dedication ii

Acknowledgements iii

List of Tables v

Abstract vi

Chapter 1: Introduction 1

Chapter 2: Jacksonian Era—Stage 1 16

Chapter 3: Jacksonian Era—Stage 2 51

Chapter 4: Jacksonian Era—Stage 3 148

Chapter 5: Republican Era—Stage 1 259

Chapter 6: Republican Era—Stage 2 508

Chapter 7: Republican Era—Stage 3 567

Chapter 8: Conclusion 583

Bibliography 595

Appendix: List of Cases 606

v
List of Tables

Table 1: Skowronek’s model 11

Table 2: Supreme Court model 13

Table 3: Comments on Indian removal 22

Table 4: Vote on Indian removal 24

Table 5. Worcester Court 49

Table 6: Comments on nullification 63

Table 7: Vote on National Bank 68

Table 8: Vote on Buffalo & New Orleans Road 75

Table 9: Vote on Maysville Road 88

Table 10: Vote on 1846 Bill 93

Table 11: Jacksonian appointments to the Supreme Court 116

Table 12: Topics in Charles River Bridge v. Warren Bridge 120

Table 13: Gibbons and Miln 129

Table 14: Bank of Augusta v. Earle 131

Table 15: Georgia and Alabama law 135

Table 16: License Cases 137

Table 17: McLean’s vote 145

Table 18: Tallmadge Amendment 153

Table 19: Initial vote on banning slavery in Missouri 156

Table 20: Final vote on allowing slavery in Missouri 156

Table 21: Vote on 36° 30! restriction 156

vi
Table 22: Factions in Congress 158

Table 23: Missouri Compromise 161

Table 24: Polk’s land grabs 163

Table 25: Positions on annexation of Texas 165

Table 26: House vote on Texas 171

Table 27: Senate vote on Texas 172

Table 28: Polk’s promises 181

Table 29: Extension of 36° 30! 186

Table 30: Van Buren’s impact on the 1848 presidential election 193

Table 31: House make-up in 1850 194

Table 32: Senate make-up in 1850 194

Table 33: Attitudes towards Taylor’s plan 199

Table 34: Attitudes before and after Clay’s address 202

Table 35: Committee of 13 208

Table 36: Davis and Berrien Amendments 209

Table 37: Yulee Amendment 210

Table 38: Type of speech on Compromise of 1850 211

Table 39: Parts of Compromise of 1850 216

Table 40: Senate vote on California 216

Table 41: Senate vote on Utah 216

Table 42: Senate vote on New Mexico 216

Table 43: Senate vote on Fugitive Slave Law of 1850 217

vii
Table 44: Senate vote on D.C. slave trade 217

Table 45: House vote on Little Omnibus (Texas-New Mexico) 218

Table 46: House vote on California 218

Table 47: House vote on Utah 218

Table 48: House vote on Fugitive Slave Law of 1850 219

Table 49: House vote on D.C. slave trade 219

Table 50: Factions and the “Appeal” 226

Table 51: Senate vote on Kansas-Nebraska 228

Table 52: House vote to refer to the Committee on the Whole 228

Table 53: House vote on Kansas-Nebraska 229

Table 54: Dred Scott 246

Table 55: Supreme Court model in Jacksonian era 257

Table 56: Amnesty 261

Table 57: Wade-Davis versus Lincoln’s plan 277

Table 58: Carlile’s plan 286

Table 59: Black suffrage 289

Table 60: Brown Amendment 290

Table 61: Rescinding the Brown Amendment 292

Table 61: Senatorial Oath 302

Table 63: Johnson’s amnesty plan 308

Table 64: Black Codes 318

Table 65: Joint Committee on Reconstrcution 329

viii
Table 66: Black suffrage in Washington D.C. 333

Table 67: Garrett Davis 357

Table 68: Override vote 358

Table 69: Unconstitutionality 368

Table 70: Senate override of Civil Rights veto 378

Table 71: House override of Civil Rights veto 378

Table 72: Section 3 387

Table 73: Section 2 402

Table 74: Changes to the original Fourteenth Amendment 406

Table 75: Vote on the Fourteenth Amendment 410

Table 76: Radical pragmatism 415

Table 77: Radical lament on lack of black suffrage 418

Table 78: Tennessee readmission 423

Table 79: Bingham versus Finck 425

Table 80: Senate vote on Tennessee readmission 427

Table 81: House vote on Tennessee readmission 427

Table 82: Republican gains 442

Table 83: Reconstruction factions 444

Table 84: Arguments in Ex Parte Garland 472

Table 85: Rogers, Finck, and Boyer 501

Table 86: Boutwell’s bill 502

Table 87: Timeline for Ex Parte McCardle 515

ix
Table 88: Strong and Bradley 534

Table 89: Legal Tender Cases 565

Table 90: Democratic gains in presidential elections 568

Table 91: Anti-trust ideology 571

Table 92: Jacksonian regime. 586

Table 93: Republican regime 587

Table 94: Recap of the model 588

x
Abstract

Party leaders can use the Supreme Court to further their political and policy goals. By
locating the governing regime’s strength and the Court’s alignment with the regime, we
can better understand how the Court operates at any given moment. In Stage 1 of the
realignment cycle, the Court can be used to help consolidate the coalition. In Stage 2, the
Court helps implement the party’s platform. In Stage 3, the Court tries to maintain the
integrity of the coalition. This dissertation looks at the Supreme Court of the antebellum
and postbellum periods, demonstrating that placing the Court in “political time” is a
useful way to understand the institution.

1
Chapter 1: Introduction
Regimes use different tools to accomplish their political and policy goals. They
can use legislation, executive orders, budgeting, or administrative enactments to secure
votes or deliver on their agenda. One entire set of tools that has gone unnoticed is the
different functions the Court can serve for the regime. We know about some of those
functions already.
1
But we don’t have a full narrative on when party leaders will turn to
the judicial toolkit. This dissertation attempts to describe the ongoing, dynamic
relationship between the Court and the rest of the regime. I examine when the regime
employs the Court, and which functions it calls upon. I argue that we can better
understand the Court if we place it in political time. By doing so, we can gain more
traction on the institutional context of the Court, the regime, and realignment theory.
As of now, realignment largely neglects the role of the Court. If realignment is to
encompass the entire government, then it needs to take account of all three branches.
Currently, the literature lays out a solid explanation for how parties come into power
through critical elections. Some works are strong in describing how realignment affects
the sitting Supreme Court. Meanwhile, Skowronek and others have contributed evidence
of presidential and Congressional operations throughout the realignment cycle. Yet, the
institutional analysis of the Court through time is still missing. This dissertation seeks to
fill that void. It tells how parties deal with Old Guard Courts after critical elections. It
tells how the Supreme Court affects realignment. And it describes the Judiciary’s

1
Whittington describes many of them in Keith E. Whittington, “‘Interpose Your Friendly Hand’: Political
Supports for the Exercise of Judicial Review by the United States Supreme Court” American Political
Science Review (November 2005): 583-596.

2
operations throughout the realignment cycle. My work does not complete realignment
theory; there will always be an ongoing debate. But I believe my work adds one of the
biggest missing pieces and lends a good deal of support to our understanding of
realignment.
This dissertation looks at the ways in which the Supreme Court helps shape and
achieve the political and policy goals of the dominant regime. I start by giving a
definition for “regime,” and explain how regimes play a central role in national politics. I
then briefly talk about the two regimes that will serve as cases for this project. Next, I
present an overview of the literature, and where my work fits with the rest of American
Politics and Public Law. Here, I also discuss the theoretical orientation and contribution
to the field. I close by providing a brief preview of the rest of the chapters.
Definition of “Regime”
For the purposes of this study, a regime is the collection of political actors who
are held together by some common policy interests. Regimes—especially their leaders—
are primarily concerned with two goals. First, there is a political goal. The regime is
invested in obtaining the right to govern. It seeks to win elections, dole out patronage,
and appoint judges. Because national American politics often boil down to a two-party
race, the regime seeks not only to promote itself, but also to impair and weaken the
opposition. Secondly, there is a policy goal. The regime is interested in implementing a
number of policies. Sometimes the policies make up a comprehensive ideological
program, like the New Deal. Sometimes the collection of policies does not seem to have
an overall logic. The nature and breadth of the policy commitments will depend on the

3
diversity of the electoral base. It is important to note that the policy goal can also serve
the political goal. Regimes might pass certain policies because they had previously
promised to do so. They might pass them because they are genuinely implementing their
ideological vision for the county. Alternatively, they might pass them because they serve
to solidify or enlarge the electoral base.
The regime is hierarchically structured, and its leaders are often identifiable.
Presidents, Speakers of the House, and Senate leaders are obvious candidates to provide
the regime with political and policy guidance. Leadership can come from other sources
too, such as the Supreme Court, the Cabinet, or party bosses. For example, during the
Federalist regime from 1789-1800, George Washington and John Adams provided
Executive leadership while Senators Robert Morris and Rufus King headed the
Legislative wing of the regime. Yet perhaps the most influential contributors were
Secretary of the Treasury Alexander Hamilton and Chief Justice John Marshall. The
leadership of the regime can change, depending on, among other things, elections, court
decisions, policy goals, regime membership additions and dropouts, and exogenous
shocks (e.g., assassinations). Regardless of whoever might happen to occupy the
leadership positions of the dominant regime, those leaders will try to accomplish the two
goals of the regime (i.e., gain and maintain the right to govern, and implement policies).
There seems to be a marked difference in 19
th
and 20
th
century regimes in the
United States. In the 19
th
century, political parties played a central role in organizing
electoral efforts, drafting legislation, selecting judges, etc. In the 20
th
century, the role of
parties has diminished. The ebb of party government has generated the need to build

4
regimes around something else. It has necessitated a greater reliance on partisan
coalitions—a group made up of various members from both parties. For instance,
Libertarian Republicans from New England and the West joined the Reagan regime on
libertarian causes, like tax cuts. Meanwhile, on judicial nominations, their votes were not
as predictable. Indeed, a pair of coastal Republicans voted against Clarence Thomas.
However, Southern Democrats joined with George Bush to put Thomas on the Bench.
This kind of cross-partisan dynamic is not totally missing from the 19
th
century. In the
1850s, for example, many Southern Whigs and Northern Democrats defected from their
respective parties on the slavery issue. Though coalitional forces played a key role in
some of the most important developments of the 19
th
century, the strength of the parties
made that dynamic less prevalent in the 1800s. To sum up, the 19
th
century regimes tend
to be more recognizable, and they tend to center on the political party.
Antebellum and Postbellum Regimes
The antebellum Jacksonian Democratic regime lasted from 1828-1860. The party
was largely founded as the nation’s response to the 1824 election in which John Quincy
Adams gained the presidency though the “corrupt bargain.” The regime definitely had
an overall ideological commitment to the Jeffersonian vision of an agrarian democratic
America. Agrarianism played out with a variety of issues. Democrats opposed the tariff,
which primarily benefited the industrializing North. Because land was necessary to
agrarianism, Democrats were pro-expansionist. Throughout the period, the party took
numerous opportunities to expand the size of the country. The methods varied, including
seizing Indian territory, going to war, signing treaties, and buying land. With a large

5
expanding geographic country, Democrats became attuned to maintaining African slave
labor, and guaranteed certain aspects of slavery. Though Southern Democrats later
became more extreme, the entire party was at least committed to state regulation of
slavery, a limited amount of slavery in the territories, and strict enforcement of the
fugitive slave clause.
The democratic element of the party’s ideology manifested itself with a steadfast
belief in states rights and limited government. Democrats thought that the best way to
obtain democratic governance was to devolve power to the states, and limit the federal
government to its strictly enumerated powers. Slavery policy was in part a result of this
part of the ideology. That said, where the federal government was empowered,
Democrats vigorously upheld Washington authority. Such areas include the
unconstitutionality of nullification, the enforcement of the fugitive slave law, and the
broad use of the Commander-in-Chief Clause. The limited government plank of the
platform was most clear in Jacksonian opposition to internal improvements; and they
were even more staunchly opposed the Bank of the United States.
The postbellum Republican regime lasted from 1860-1896 (although 1860-1865
should be seen as an interregnum). The party was largely founded in response to the
Whigs inability to combat the extension of slavery. When Democrats passed the Kansas-
Nebraska Act, thereby nullifying the Missouri Compromise, the Whig Party
disintegrated. The Republican Party had been around before Kansas; encompassing
abolitionists, Know-Nothings, and other Northerners. The fall of the Whigs, though,
gave the party the boost it needed to compete on the national level. The Republican Party

6
was founded on anti-extensionism. They opposed any and all legislation that sought to
transplant slavery out west. That said, Republicans were not immediatist abolitionists.
They believed that slavery should be left alone where it existed. Given time, it would
naturally die out. Of course, Southern suspicion of these motives led to the Civil War, in
which the Republican Party was stalwartly pro-Union and pro-War. Following the war,
the party was pro-Reconstruction, but the scope of that policy shifted from 1863-1877.
At first, the party favored a moderate approach. Then they turned more radical, and
finally, they backed away from Reconstruction.
Republican economic policy was more complicated. At first, Republicans seemed
to continue the Whig tradition of a pro-business, activist national government. They
favored high tariffs, internal improvements, and railroad subsidies. They maintained that
stance throughout the war, in part because the war effort itself required a government that
spent a lot of money. At the end of the war, the activist strand of the party translated into
the assistance in helping blacks out of slavery. Republicans fought for the Freedmen’s
Bureau, the federal government’s first semi-permanent major social welfare agency.
Eventually, Radical Republicans embarked on the expensive operation of placing the
military in the South to aid with Reconstruction. Around 1872, Republican cohesion on a
fiscally active national government began to break down. Within a few years, about half
the party adopted a more laissez faire approach to the market.
Place in the Literature
I seek to fit the Supreme Court within realignment theory, and to explain the
different ways in which party leaders can employ the Court’s various institutional tools at

7
different moments in the realignment cycle to contribute to the political and policy goals
of the regime. A lot of previous work has worked on the margins of this issue. In this
section, I discuss some of the major contributions to realignment theory, the benefits and
limitations of such studies, and their relevance to this dissertation.
Critical elections and critical realignment theory provide the basic framework for
understanding the emergence, continuation, and downfall of American political regimes.
V.O. Key’s classic 1955 article on critical elections still provides the baseline for
discussing shifts and durability of voter alignment. It argues that certain elections—in
Key’s case, 1896 and 1928—have offered tipping points for built-up tension. These
elections display dramatic and durable shifts in the population, setting the stage for the
winning regime to dominate federal politics for decades.
2
Walter Dean Burnham’s
Critical Elections and the Mainsprings of American Politics is no less canonical.
Burnham describes how critical elections redefine parties, and how the US seems to have
electoral life cycles.
3
Though Key and Burnham came up with innovative ways of
measuring critical elections, their data is limited to Congressional and presidential
elections. Obviously, since judges are not elected, they cannot be subject to the same
kinds of analysis. Still, the fact remains that in discussing the complete overhaul of the
political system, the two major works in the field leave out one-third of our federal

2
V.O. Key, “A Theory of Critical Elections” Journal of Politics (1955): 3-18.

3
Walter Dean Burnham Critical Elections and the Mainsprings of American Politics (New York: Norton,
1970)

8
government. Realignment theory has overlooked the courts so much that even the
literature’s most notable critic makes no mention of it.
4

Some public law scholars have tried to fill that gap by discussing how
realignment affects the Supreme Court. Robert Dahl’s classic 1957 article on the
Supreme Court demonstrated that exercises in judicial review (especially over “major”
policies) were more likely to take place when a new party took over the reigns of the
Capitol and White House.
5
Richard Funston later found that the Court was more likely to
employ judicial review during transitional realignment periods than during eras of stable
party government.
6
John Gates brought some more sophistication and insight into Dahl’s
findings.
7
David Adamany takes a more historical approach in discussing four
realignments in American history. In each example, the newly installed elected party had
to deal with various problematic decisions from the Court staffed by members of the
previous regime.
8
These pieces give us insight into how the Court initially responds to a

4
See David Mayhew, Electoral Realignments: A Critique of an American Genre (New Haven, CT: Yale
University Press, 2002).

5
Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker”
Journal of Public Law 6 (1957): 279-295. Reprinted by Emory Law Journal in 2001.

6
Richard Funston, “The Supreme Court and Critical Elections” American Political Science Review
(September 1975): 795-811.

7
John B. Gates, The Supreme Court and Partisan Realignment: A Macro and Microlevel Perspective
(Boulder, CO: Westview Press, 1992); John B. Gates, “Partisan Realignment, Unconstitutional State
Policies, and the US Supreme Court, 1837-1964” American Journal of Political Science Vol. 31, No. 2
(May 1987): 259-280; John B. Gates, “The Supreme Court and Partisan Change: Contravening, Provoking,
and Diffusing Partisan Conflict,” in The Supreme Court in American Politics: New Institutionalist
Approaches ed. Howard Gillman and Cornell Clayton (Lawrence, KS: University Press of Kansas, 1999).

8
David Adamany, “Legitimacy, Realigning Elections, and the Supreme Court” Wisconsin Law Review
(1973): 790-846.

9
realignment, but they do not tell us much about how the Court’s role in other parts of the
realignment cycle.
Some scholars have attempted to answer that question. In fact, Dahl, Funston,
Gates, and Adamany all talk about the role of appointments in eventually making the
Supreme Court a part of the dominant regime. Others have presented some more
nuanced theories about the Court-realignment relationship. William Lasser writes that
the Supreme Court can contribute to realignments with polarizing decisions that help
shape the agenda for presidential elections. Lasser’s article is important because it gives
us insight into how supposedly pro-regime decisions can backfire and help destroy the
coalition.
9
Keith Whittington finds that Congressional curbing of judicial power is most
likely to happen in “moments of abrupt legislative transition.”
10
This article helps us
understand how Congress can actively combat an uncooperative Supreme Court. Both
Lasser and Whittington offer one aspect of the Court-realignment relationship; but there
are many other parts to the story. That is, the relationship, on the whole, has been under-
developed.
Contrasted with work on the Court-realignment relationship, others have told
more developed stories of how other institutions relate to realignment. Stephen
Skowronek comes up with a comprehensive narrative for the presidency. Using
realignment cycles, Skowronek argues that presidents will fall into a typology. Because
American regimes lose power over time, the regime’s presidents will follow the politics

9
William Lasser, “The Supreme Court in Periods of Critical Realignment” Journal of Politics Vol. 47, No.
4 (November 1985): 1174-1187.

10
Keith E. Whittington, “Legislative Sanctions and the Strategic Environment of Judicial Review” I-Con:
The International Journal of Constitutional Law Vol. 1, No. 3 (1999): 445-474.

10
of reconstruction, articulation, and then disjunction. Reconstruction presidents will have
the authority to make sweeping changes. Articulative executives will try to build on that
platform, while disjunctive presidents will simply try to keep the coalition together.
11

Whittington uses Skowronek’s typology to discuss how differently cast presidents will
view their Constitutional roles.
12
Richard McCormick examines the elected branches
throughout the realignment cycle. He concludes, “It is not elections (critical or
otherwise) that have been the ‘mainsprings’ of American politics, it is government.”
13

Though these studies mainly focus on the elected branches (though Whittington does use
the Court), they are probably more in line with this dissertation than any other part of the
realignment literature. They take an institution and track its political development
through the entire realignment cycle. They show how the institution helps create,
respond to, and work within realignment theory.
My Contribution
My goal is to provide a model that tells a fuller story of how the Supreme Court
fits within the realignment cycle of elections, governance, and coalition maintenance.
My model largely takes off from Skowronek’s presidency model. He lays out his
typology based on two variables: the political identity of the president with the dominant
regime (i.e., is the sitting president a member of that regime); and the president’s
relationship to his predecessors (i.e., was his predecessor part of the regime or the

11
Stephen Skowronek, The Politics Presidents Make (Cambridge, MA: Harvard University Press, 1997).

12
Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, The Supreme
Court, and Constitutional Leadership in US History (Princeton, NJ: Princeton University Press, 2009).

13
Richard L. McCormick, The Party Period and Public Policy: American Politics from the Age of Jackson
to the Progressive Era (New York: Oxford University Press, 1986): 18. Emphasis in original.

11
opposition. My model is quite similar, lining up the political identity of the Court with
the political identity of the dominant regime, as well as whether or not the regime is in a
position of strength or weakness.
Table 1. Skowronek’s model.
POLITICAL IDENTITY
Affiliated Opposed
Vulnerable Disjunction Reconstruction
PREVIOUSLY
ESTABLISHED
COMMITMENTS Resilient Articulation Preemption

One of Skowronek’s biggest contributions is his idea of “political time.” We can
best understand the institutional context of any president if we plug him into
Skowronek’s typology. Doing so gives us insight into the president-regime relationship
and the strength of the regime. Knowing those two factors, we can then predict what
kind of politics that president faced. In the end, Skowronek concludes that the
presidential account is cyclical, and that we can compare reconstructive presidents with
other reconstruction presidents, articulators with other articulators, etc. I believe the
same “political time” dynamic applies to the Supreme Court. Party leaders will always
have to accomplish their two goals. How they go about doing this will largely depend on
the timing of the regime cycle.
At the beginning of a realignment cycle, we will likely see what Dahl, Funston, et.
al found: a New Guard elected regime butting up against the Old Guard Court. In this
stage, it might not seem like party leaders have much use for the Judiciary. Actually, it
seems as if the Court presents a major obstacle to the regime’s policy goals. However,
parties can use the Court to publicize an otherwise simple majoritarian issue. That is,
instead of simply letting a policy pass, the Old Guard Supreme Court can call attention to

12
the popular policy by striking it down. By claiming counter-majoritarian intrusion, the
New Guard can gain support from an electorate who voted for those officials to enact the
exact changes that the Court struck down. In a word, party leaders can use one aspect of
the institutional structure of the Supreme Court (lifetime appointments) to consolidate
their coalition. Although critical elections certainly provide the breaking point for
periodization, they are anything but certain to realign politics for 30 years. Shoring up
partisan support from the electorate after a critical election goes a long way in controlling
the federal government in the long-term.
In Skowronek’s presidency model, the Executive is strongest at the beginning of
the regime cycle. He comes sweeping into office, ready to repudiate the previous regime.
In my Supreme Court model, the Judiciary is strongest in the middle of the regime cycle.
After placing a majority of partisans on the Bench, the regime can best employ the unique
institutional tools that the Court has to offer. Most obviously, the regime can delegate
certain issues to the Court. With the Court reliably in the back pocket of the regime, it
will decide these cases in a pro-regime fashion. These issues can be policy issues, but
perhaps even more important, they can be Constitutional issues. That is, the Supreme
Court seems particularly well suited to handle controversies that primarily rest on the
regime’s ideological vision of the Constitution. Likewise, the regime can count on the
Court to legitimize whatever Congress legislates. This period of the Supreme Court’s
role in the regime can be seen as one of implementation. Partisans have been appointed
and fellow party members sit in the elected branches. It is just a matter of following
through on the political and policy goals.

13
The third and final stage of Supreme Court political time is similar to
Skowronek’s. In disjunction, the president will hopelessly try to keep his disintegrating
coalition together. He might avoid divisive issues or try to focus on those that do unite
otherwise divisive factions. Eventually, those issues will have to be discussed. Here is
where the story of the Supreme Court most clearly intersects with the other branches.
One tool party leaders will use will be to take the most conflict-ridden issues and toss
them to the Supreme Court. Leaders of the regime will claim that those issues are
judicial matters, and squarely up to the Court . Regardless of the Court’s opinion, all
members of the regime can return to their constituents with one of two messages. Either
the Court ruled correctly and they won the issue; or the Justices ruled incorrectly, but as a
matter of law, they should obey the High Court. In this stage of the regime cycle, the
Court is tasked with maintenance. My overall model is very similar to Skowronek’s,
Table 2. Supreme Court model.
POLITICAL IDENTITY OF THE COURT
Affiliated Opposed
Vulnerable Maintenance [Unlikely scenario]
14

STRENGTH
OF THE
REGIME Resilient Implementation Consolidation

Preview of the Following Chapters

The following chapters will show how different Supreme Courts have been tasked
with different responsibilities in political time. By the end, we will arrive at the
conclusion that party leaders have used the Court in different ways depending on the
regime’s moment in the realignment cycle. The approach for each chapter is the same. I

14
Regimes are likely to be weak after they have existed for sometime. That existence, though, necessitates
a good number of appointments to the Supreme Court. Thus, it is difficult to imagine an unaligned Court
and a weak regime.

14
start by examining regime preferences. If we are to look at the different ways in which
regimes accomplish political and policy goals, then we need to first be clear as to their
policy preferences. After uncovering preferences, I move into how the Court responded
to the issues brought before it. The Court’s opinions—as well as the regime’s reaction to
those decisions—largely depend on political time. In terms of case selection, I choose
the issues and Court cases that seemed to most threaten the regime. That is, I choose
cases that, if resolved by the regime, would likely bring about its downfall. I believe the
cases in the following chapters are the most integral ones in looking at how party leaders
used the Supreme Court to accomplish the regime’s goals.
Chapter 2 shows how the Jacksonian coalition used Indian removal to consolidate
the regime. By disobeying John Marshall, Jackson was able to make parts of the Deep
South the stronghold of the Democratic Party. Chapter 3 presents evidence that the Court
was tasked with handing down states rights and limited government decisions. In this
stage, the Court served the regime well, taking on the more ideological promises while
Congress dealt with more policy-based issues, like the tariff and slavery. Chapter 4 goes
into slavery politics, showing how the issue became extremely combustible in the mid
1850s. With Congress unable to compromise on the issue, they deferred slavery to the
Court. Ironically, Dred Scott actually helped lead to the rise of the Republicans.
As Republicans came into office in 1860, they faced a Supreme Court staffed by
Democrats and headed by Roger B. Taney. Even after a majority of appointments,
Republicans still had to deal with the fallout of not appointing true partisans. This led to
a handful of frustrating decisions in the first years of Reconstruction. Chapter 5 discusses

15
those opinions. Chapter 6 turns to the Court once Republicans captured the institution. I
illustrate how Republicans tasked the Court with various issues, such as Reconstruction
and legal tender. Next, Chapter 7 looks at the break within the Republican ranks on the
economic issues. I show how Old Guard Republicans split with Liberal Republicans, and
how those factions agreed to send anti-monopoly legislation to the Court. Once again,
the fallout from that decision did little to solve the issue.
My final chapter discusses some of the implications of the research.
Substantively, I return to the notion of fitting the Court into our notions of realignment. I
believe the best way to do that is to employ Skowronek’s notion of political time—it
gives us insight into how parties can employ the Court and how the Court can respond to
the political environment. I also touch on where this dissertation fits within the entire
American politics literature. As mentioned, I believe it belongs in the realignment
literature. But I also believe that it follows the emerging trend to “bring the courts back
in” to the study of American politics. I discuss what it means to study American politics
and the necessity to account for the courts. Finally, I close by providing avenues for
future research. My work is but the first step in fully integrating the Court into
realignment theory. I give some suggestions for taking the next steps.

16
Chapter 2: Jacksonian Era—Stage 1
One of the central goals of the early Jacksonian regime was Indian removal.
Many Southerners—especially Georgians and Alabamans—wanted to transplant tribes
currently living within their home states. The most reasonable solution, in their mind,
involved moving the Indians out to the Mississippi River. After Andrew Jackson took
office, Georgia passed laws that forced the Washington regime to do something about
Indian removal. After a heated Congressional debate, the Democrats passed the Indian
Removal Act of 1830, which, up to that point, had to be regarded as Jackson’s biggest
legislative victory. The substantive effects were enormous. Eventually, thousands of
Indians made the westward trek in what later became known as the Trail of Tears. At the
time, though, the most significant immediate affect was to consolidate the power of the
Democratic Party. By passing the Removal Act, Jackson shored up what became the
stronghold of the party: the Deep South.
The Cherokee Indians fought back via two Supreme Court cases. Though John
Marshall denied jurisdiction in the first case, he also set in motion the events that
culminated in the second case, Worcester v. Georgia, where the Court declared Georgia’s
state laws unconstitutional. Not wanting to impede Indian removal, the president refused
to enforce the ruling. Historically, Worcester is one of the few Supreme Court cases
cited as an instance in which the Executive was completely unwilling to execute the law.
Jackson’s intransigence can be attributed to the disharmony between his and the Court’s
political ideologies. Federalists and National Republicans still staffed the Court; Jackson

17
was elected to repudiate those commitments.
15
When the time came for the president to
follow through on an issue of principal saliency, Old Hickory could not do it. He would
not let the holdovers from the previous regime dictate American Indian policy. Perhaps
more importantly, the Old Guard Court gave Jackson a chance to publicize the issue. He
used the opportunity to signal to the Deep South that the Democratic Party would back
their claims.
Georgia Law
Going back to its colonial days, Georgia—like almost every other colony and
state—had engaged in a one-sided Indian policy. The British/Americans dominated the
relationship between whites and Indians. Prior to European imperialism, Indians enjoyed
the run of the continent. By the antebellum period, the Indians were sequestered to small
enclosures, where they were still constantly pressured to yield more and more land to the
United States. Bribes, forced treaties, and warfare were the main tools employed against
the Indians. Early into the Jackson administration, Georgia employed a new technique:
declaration. In 1829, the Georgia legislature enacted a law meant to pressure the
Cherokee Indians into succumbing to American imperialism. Not even trying to hide
their intentions, the legislature entitled the law, “an act to add the territory lying within
this state and occupied by the Cherokee Indians.”
16

Georgia’s legislature did not call for simple annexation. Such a move might have
been perceived as unfair—even in the racist and land-grabbing 19
th
century. Instead,

15
See Skowronek, 130-155.

16
Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

18
Georgia law was aimed at making the Indians’s lives considerably worse, to the point
where they would be more willing to deal their land away—presumably at a price
advantageous to Georgia. To do this, the state extended her laws over the Cherokees and
annulled all Cherokee laws and ordinances.
17
In essence, Georgia exerted her self-
proclaimed sovereignty over a group of Indians who believed that they constituted a
sovereign (if dependent) nation. The state also enacted civil rights restrictions against the
Indians, such as disallowing Indian testimony as witnesses in court.
18
President
Jackson’s decision not to combat Georgia’s law encouraged whites to encroach upon
Indian lands. McLoughlin writes, “The administration wanted the Cherokees to see just
how vulnerable they were to white oppression without federal support.” McLoughlin
also points out that matters became worse when gold was discovered on Cherokee land.
White squatters extracted upwards of $2000 a day worth of gold. Confronted with the
problem, the Georgia legislature passed a bill stating that all gold discovered on Cherokee
land belonged to Georgia. The land itself belonged to the Peach State; “Indians were
only tenants on the land.”
19

The Regime Responds
Georgia provided the sparkplug for Congress and the president to jump in on the
Indian question. Jackson devoted considerable attention to the Indians in his State of the
Union Address in 1829. He called for an area of land west of the Mississippi River to be

17
Cherokee Nation v. Georgia.

18
Senator Theodore Frelinghuysen, 21
st
Congress, 1
st
session. Register of Debates, 318.

19
William Gerald McLoughlin, Cherokee Renascence in the New Republic (Princeton, NJ: Princeton
University Press, 1986): 430.

19
set aside for Indian transplants (such as removed Cherokees). These lands would forever
be guaranteed to the Indians, so long as they occupied the land. Jackson meant to end the
continuous and unstable Indian treaty-making policy. If enacted, this law would be the
treaty to end all treaties. From an Indian viewpoint, it had a huge drawback: removal.
The Indians would have to leave their homes, trek across the country, and settle in an area
described by some as “the Great American Desert.”
20
But not everything was a bad deal
for the Indians. For starters, they would be given land that would never be taken away
from them. (Of course, they had heard that promise before.) They would also be allowed
to form their own governments and govern their own respective tribes. The US
government would not impede on tribal life, so long as there was peace on the frontier
and between the various tribes. Lastly, “the emigration should be voluntary, for it would
be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and
seek a home in a distant land.”
21

Not surprisingly, if the Indians chose to remain in the land they already occupied,
then they would be subject to the laws of the states in which their tribe resided. In
addition, if they remained, they would be protected by the United States, just so long as
they made improvements on their holdings. If they did not adopt agriculture, though, and
continued hunting, then white “claims can be allowed on tracts of country on which they
[the Indians] have neither dwelt nor made improvements.” Jackson closed this portion of
his address with what he probably saw as a reassurance to the Indians (and/or whites): if

20
A public surveyor, Stephen Long, coined the phrase in 1823.

21
Andrew Jackson “1829 State of the Union Address,” The American Presidency Project (8 December
1829).

20
the Indians just submitted to American laws and assimilated into the American economy,
they would “ere long become merged in the mass of our population.”
22

Taking the president’s advice, the 21
st
Congress passed the Indian Removal Act
of 1830. It was Jackson’s first major victory as president, as well as the administration’s
most important act before midterm elections. The Indian Removal Act gave the president
a broad array of powers, all designed to encourage and expedite Indian relocation. The
president gained the authority to set aside land west of the Mississippi and to exchange
that territory for the land where Indians currently resided. Moreover, the president
“could ‘solemnly’ assure the tribes that those lands west of the Mississippi would never
be taken.” He could help the Indians move west, and give them financial support for a
year after their removal. The president would also protect those tribes from frontiersmen,
foreigners, and other Indian tribes. Although the tribes would be guaranteed their land,
the final section of the Indian Removal Act declared that the president would always have
control over the Indians, just as he already did.
23

The disparity between Jackson’s original plan and that Indian Removal Act of
1830 is worth noting. First, it did not say anything about tribal governance. The Act did
not say that once moved out west, Indians would govern their own affairs. Secondly,
Jackson intended for the Indians to move at their own will; they would not be
dispossessed of their land. The bill passed by Congress, however, spoke nothing of the
Indians having that right. This was a frequent point of discussion in the Senate and

22
Jackson, “1829 State of the Union Address.”

23
Indian Removal Act of 1830, U.S. Statutes at Large (28 May 1830).

21
House debates. The pro-removal faction countered that it was implicit in the deal
already. To most of the anti-removal group, this was not good enough. They wanted a
guarantee that the Indians would only be removed if they themselves consented to it.
Senator Theodore Frelinghuysen offered an amendment to the bill that protected Indian
property “until the said tribes or nations shall choose to remove.”
24
It was rejected.
Representative Georgia Evans of Maine would not even trust an explicit mention of
Indian consent. First of all, he said, he believed that the Indians might be driven off their
lands by military force. But even if force was not employed, he said, “is there no
compulsion except military compulsion? Can men be coerced by nothing but guns and
bayonets?…Oh, no. No force. Only the laws of Georgia are to be extended over them!
Their ancient customs, laws, usages, are to be abolished—their council fires are to be
extinguished—their existence as a political community to be annihilated.”
25

Such virulence was quite common in Congressional deliberation over the Indian
Removal Act of 1830. Both chambers debated for about two weeks, with almost all other
business coming to a complete halt. The vehemence, tone, and duration of the debate all
speak to the salience that both factions placed on the issue. The pro-removalists took
their case to the extreme. The anti-removalists sometimes invoked claims of humanity,
arguing that one man should not steal from another. More often, they brought up the
issue of shamefulness and how reprehensible it would be for the US government to take

24
Frelinghuysen, 381.

25
Representative George Evans, 21
st
Congress, 1
st
session. Register of Debates, 1039.

22
such action. The table below shows a handful of quotes taken from the Congressional
debates. Two particular incidents deserve a bit more context.
Table 3. Comments on Indian removal.
Legislator Removal Quote
Frelinghuysen N “Such a process will disgrace us in the estimation of the
whole civilized world!…I do religiously believe that it will
awaken tones of feeling that will go up to God, and call
down the thunders of his wrath.”
26

Storrs N “I was ashamed to find the justification of one of its [the
Executive’s] measures put forth in such a paper…Every step
we advance in this injustice will sink us deeper in
disgrace.”
27

Ellsworth N “The eyes of the world, as well as of this nation, are upon us.
I conjure this House not to stain the page of our history with
national shame, cruelty, and perfidy.”
28

Everett N “The evil, sir, is enormous; the violence is extreme; the
breach of public faith deplorable; the inevitable suffering
incalculable. Do not stain the fair fame of the country.”
29

Forsyth Y “I regret, sir, that the amendment to the bill, proposed by the
Senator from New Jersey [Frelinghuysen] is not more
definite and precise. His explanation of its purpose is not
more satisfactory than the amendment itself, and it is only by
looking to his speech that we are relieved from
embarrassment.”
30

Senator Richard Henry Wilde of Georgia described a similar bill that had dealt
with the Creek Indians. In that case, the Legislature agreed to remove the consenting
Creeks west of the Mississippi River. “The gentleman from Massachusetts [anti-removal
Representative Edward Everett] wished to find himself under a moral necessity to vote

26
Frelinghuysen, 318.

27
Representative William Storrs, 21
st
Congress, 1
st
Session. Register of Debates, 1011-1014.

28
Representative William Ellsworth, 21
st
Congress, 1
st
Session, Register of Debates, 1030.

29
Representative Edward Everett, 21
st
Congress, 1
st
Session, Register of Debates, 1079.

30
Senator John Forsyth, 21
st
Congress, 1
st
Session, Register of Debates, 325.

23
for this measure,” Wilde said, “He has not been able to find that necessity now, though he
found it some years since, in 1826.” One Congressman pointing out another’s
inconsistent voting patterns is nothing terribly shocking. However, at this point in
Wilde’s speech, the Register of Debates notes “Here Mr. Everett asked Mr. W. in a low
tone, ‘And who voted against that?’” United States Congressmen were taking shots at
each other under their breath on the floor of the House of Representatives!
31

The second incident involves an issue much more sensitive to 1830s Southerners.
Congressman Thomas F. Foster of Georgia reasoned with his colleagues, telling them
that his home state would not stop in the removal of the Cherokees, regardless of what
Congress passed or did not pass. Moreover, any attempt to stop the Peach State might
bring about serious consequences. Foster’s pronouncement speaks for itself:
Permit me, however, before I close, to ask the committee, if they refuse to pass
this bill, what course this government will adopt. Will they attempt to interfere
with the jurisdiction of the state of Georgia, and arrest the operation of her laws
over the Indians? Sir, this is a most momentous question. We are indeed brought
to a crisis—we are upon the very banks of the Rubicon—a very narrow boundary
divides you from state jurisdiction—cross it, and we may not be able to calculate
the consequences…I tell you, sir, Georgia has taken her course, and she will not
retire from it.
32

Regime Preferences
The passage of the Indian Removal Act of 1830 was a major victory for the
Jacksonians. They spent a good deal of time and effort securing its enactment. Most
obvious, the breakdown of Congressional votes indicates that there was a partisan
element to the bill.

31
Representative Richard Henry Wilde, 21
st
Congress, 1
st
Session. Register of Debates, 1102.

32
Representative Thomas Foster, 21
st
Congress, 1
st
Session. Register of Debates, 1036.

24
Table 4. Vote on Indian removal.
Group Voted Yea Voted Nay
Senate
Democrats
National Republicans
28
24
4
19
0
19
New England Senators
Democrats
National Republicans
1
1
0
11
0
11
Southern Senators
Democrats
National Republicans
18
17
1
0
0
0
Western Senators (incl. PA)
Democrats
National Republicans
6
4
2
4
0
4
Other Senators (DE, MD, NJ, NY)
Democrats
National Republicans
3
2
1
4
0
4
House of Representatives
Democrats
National Republicans
102
99
3
97
25
72
New England Representatives
Democrats
National Republicans
9
8
1
27
0
27
Southern Representatives
Democrats
National Republicans
61
60
1
15
4
11
Western Representatives (incl. PA)
Democrats
National Republicans
11
10
1
29
20
9
Other Representatives
Democrats
National Republicans
21
21
0
26
1
25

The vote in the Senate went almost completely along partisan lines as every
Democrat voted for it, and nearly every National Republican voted against it. The House
tally was not as clear, but it still points to a strong partisan vote. Of the 102 yea votes, 99
came from Democrats. And although 25 Democrats voted against the act, 14 of those 25
hailed from Pennsylvania, a state more sympathetic to egalitarian ideals. The National

25
Republican vote in the House was more one-sided than their counterparts: 96% of them
voted against Indian removal. Granted, there were identifiable sectional patterns as well.
New England legislators mostly voted against it. Southerners mostly voted for it. The
West was more divided. And while sectional patterns surely fueled the Jacksonian base
(i.e., much of the coalition’s support came from the South and West), the voting of many
Northern Democrats and Southern National Republicans suggests that one’s vote was
probably more a function of party, rather than section. In any case, it is probably safe to
say that a policy geared towards Indian removal was strongly preferred by the president,
as well as a large majority of his coalition.
The Democrats could have wanted to remove the Indians because, procedurally,
they were allowed to do so. Jackson held two intertwined visions of the Constitution that
allowed him to reason through Indian removal. First, Jackson did not believe that Indian
tribes “constituted sovereign nations who could be dealt with in formal treaties as though
they were formal powers.”
33
It is tough to say whether or not this goes back to Jackson’s
days on the frontier when he raided, negotiated, and bartered with Indians. Once he
became president, though, Old Hickory had no intention of pursuing Indian policy the
same way his predecessors had. In 1829, Jackson probably believed that the Cherokees
themselves started the push for the Indian Removal Act. The Cherokees “attempted to
erect an independent government within the limits of Georgia and Alabama,” Jackson
said. The two states fought back: “These states, claiming to be the only sovereigns

33
Francis P. Prucha, “Andrew Jackson’s Indian Policy: A Reassessment” The Journal of American History
Vol. 56, No. 3 (December 1969): 529.

26
within their territories, extended their laws over the Indians.”
34
Representative Foster
explained that Indians “had nothing like national sovereignty, as understood by civilized
nations.” They held “strictly the title of occupancy.” Once the US had the will and
ability to seize those lands, the Indians lost their right to occupancy.
35
Moreover, because
Indians were not sovereign nations, they could not formally be dealt with through the
treaty process outlined by the Constitution. In fact, Senator John Forsyth argued that the
US had never made a treaty before with an Indian tribe; instead, they forged “compacts”
with the Indians.
36

The anti-removalists put up the Constitutional counterargument. Senator Peleg
Sprague of Maine immediately followed Forsyth’s speech by saying that every Senator
subscribed to treaty-making with the Indians because all of them had voted affirmatively
on Indian treaties in the past.
37
Representative William L. Storrs of Connecticut could
not understand how the federal government was able to make treaties in the past, but
now, all of a sudden, did not have that authority. Storrs pointed out that even President
Jackson had made treaties with Indians.
38
Lastly, Rhode Island Senator Asher Robbins
questioned the Constitutionality of such a bill. He believed that the Indian Removal Act
of 1830 was truly a treaty with the Southern tribes (namely, the Cherokees). He noted
that the treaty-making and treaty-ratifying process involves different players than the bill-

34
Jackson, “1829 State of the Union Address.”

35
Foster, 1031.

36
Forsyth, 335.

37
Senator Peleg Sprague, 21
st
Congress, 1
st
Session. Register of Debates, 345.

38
Storrs, 1002.

27
passing process. “It is unconstitutional,” he stated, “for it is to make a treaty by the
Legislature, which can only be made by the Executive and Senate.”
39

The Jacksonians put forth a second Constitutional view, arguing that Indian
affairs were a matter for the states, and not the federal government. Jackson was quite
insistent on his inability to stop a state from handling its own Indian affairs. In 1829, he
wrote to the Creeks and explained that he could not stop Georgia’s execution of its law.
“The arms of this country can never be employed, to stay any state of this Union, from
the exercise of those legitimate powers which attach, and belong to their sovereign
character.”
40
In 1831, Jackson addressed the Senate, “It was not pretended that the
general government had the power in their relations with the Indians to control or oppose
the internal polity of the individual states of this union.” In sum, “relative to Indian
affairs…[Congress could not] affect the territorial claims of any of the states or their
legislative rights within their respective limits.”
41

Senator Forsyth presented two Constitutional (and seemingly contradictory)
explanations for why Georgia should be able to dictate its own Indian policy. First off,
the whole matter seemed to fall outside the bounds of the enumerated powers. Thus, it
was covered by the Tenth Amendment and left for the individual states to decide.
(Although, Senator Frelinghuysen suspected that the states rights argument was meant to

39
Senator Asher Robbins, 21
st
Congress, 1
st
Session. Register of Debates, 374.

40
Andrew Jackson, “Letter to Creek Indians.” March 23, 1829. Quoted in Ronald N. Satz, American Indian
Policy in the Jacksonian Era (Norman, OK: University of Oklahoma Press, 2002). See also Jackson, “1829
State of the Union Address.”

41
Andrew Jackson, “Message to the Senate.” The American Presidency Project (22 February 1831).

28
pressure the Indians into agreeing to move west.
42
) If the Tenth Amendment did not
cover it, and the federal government had control over the matter, then “the United States
obtained, by treaty, the power to legislate over the Cherokees, and transferred it to
Georgia.”
43
Senator Sprague again responded to Forsyth, “What shall we answer?…That
we have transferred our obligation to Georgia! Have given her a license to violate our
treaties!”
44
Considering the anti-federalist mainsprings of the Democratic Party, Sprague
might have been outraged by the opposition’s statements, but he shouldn’t have been
surprised. Although Jackson’s posturing in the nullification crisis displayed a more
nationalist president, he—and the rest of his coalition—were ardent states-righters.
45

Many Democrats believed—or at least made the case—that Indian removal was
ultimately in the best interest of the Indians. They tried to seize the moral high ground
from the National Republicans by arguing that Indians could only survive, and ultimately,
thrive, if they relocated westward. Contrary to popular notions of Andrew Jackson as an
Indian hater,
46
the Democrats (including Jackson himself) tried to present the president as
a benevolent lobbyist for Indians. Congressman Wilson Lumpkin celebrated Jackson:
“No man living entertains kinder feelings to the Indians than Andrew Jackson. If any
president of the United States has deserved the appellation of friend and father to the

42
Frelinghuysen, 311.

43
Forsyth, 326.

44
Sprague, 345.

45
Jackson and the nullification crisis are taken up in a later chapter.

46
Remini discusses how Jackson is somewhat misconceived by contemporary America. Robert V. Remini,
The Legacy of Andrew Jackson: Essays on Democracy, Indian Removal, and Slavery (Baton Rouge, LA:
Louisiana State University Press), 45.

29
Indians, it is him who is now at the helm.”
47
At his first inauguration, Jackson expressed
his “sincere and constant desire” to deal with the Indians in a “just and liberal” manner.
He contended that they deserved humane consideration, and that their rights and desires
should be dealt with fairly.
48
Summing up his sentiments, he declared, “Toward the
aborigines of the country, no one can indulge a more friendly feeling than myself.”
49

If we commonly associate Jackson with the callous and brutal relocation of non-
threatening Indians, then why did Jackson believe that he was “friend and father” to the
Indians? For starters, he believed that he was saving them. Jackson understood that most
of the Indians that occupied the Eastern seaboard and the South had become a shadow of
what they once were.
50
Antebellum Democrats believed that, coupled with the thirst for
land, the inability/undesirability of Indians to assimilate quickly into white America
destined the Indians to eventual extinction. Jackson described the condition of the
Indians as “the miserable remnants of a few Eastern tribes…dragging out a wretched
existence, without excitement, without hope, and almost without thought.”
51
Yet, to
Jackson, there was an obvious solution. Nearly 75 years before Frederick Jackson Turner

47
Representative Wilson Lumpkin, 21
st
Congress, 1
st
Session. Register of Debates, 1021.

48
Andrew Jackson, “First Inaugural Address” The American Presidency Project (4 March 1829).

49
Andrew Jackson, “1830 State of the Union Address” The American Presidency Project (6 December
1830).

50
See Andrew Jackson, “1830 State of the Union Address.”

51
Andrew Jackson, “1831 State of the Union Address” The American Presidency Project (6 December
1831).

30
coined the Frontier Thesis,
52
Andrew Jackson had essentially told the Indians to go west.
There they could find “a land where their existence may be prolonged and perhaps made
perpetual.”
53
At the very least, the self-proclaimed “Great Father” believed that Congress
should do something, because “humanity and national honor demand that every effort
should be made to avert so great a calamity.”
54
Perhaps Lumpkin put the supposed
Democratic stance best: “To those remnant tribes of Indians whose good we seek, the
subject before you is of vital importance. It is a measure of life and death. Pass the bill
on your table, and you save them. Reject it, and you leave them to perish.”
55

Beyond saving their lives, Indians would also culturally benefit from moving west
of the Mississippi River. Most Americans believed that the Indians were culturally,
intellectually, and economically behind whites. A move westward would allow them to
catch up to white America before the frontier reached their lands.
56
West of the
Mississippi, they could “cast off their savage habits and become an interesting, civilized,
and Christian community.”
57
Jackson insisted that the Indians had such difficulty
advancing their development because they were continually being pushed off their land.
They were kept in a “wandering state.” And despite federal encouragement to progress,
the government had “constantly defeated its own policy” by moving the Indians “farther

52
Frederick Jackson Turner, The Significance of the Frontier in American History (Madison, WI: Silver
Buckle Press, 1984).

53
Andrew Jackson, “1830 State of the Union Address.”

54
Andrew Jackson, “1829 State of the Union Address.”

55
Lumpkin, 1016.

56
McLoughlin, 429.

57
Andrew Jackson, “1830 State of the Union Address.”

31
and farther to the west.” Interestingly, Frelinghuysen noted the same thing. The New
Jersey Senator believed that halting all Indian removal and allowing them to live on their
current plots would put an end to constant relocation. Moreover, Indians were already on
their way to advancement; they had constitutions, republican principles, a printing press,
schools, churches, and a recent tendency towards agrarianism.
58
Jackson, on the other
hand, believed that one final (albeit, enormous) relocation would put them so far out of
reach that they would finally catch up to whites.
In the end, Jackson could not believe that he was being charged with violating the
natural rights of the Indians. Not only was he saving Indian lives, but he was bettering
them by giving the Indians time and space to acculturate to 19
th
-century America. He
pleaded:
Can it be cruel in this Government when, by events which it cannot control, the
Indian is made discontented in his ancient home to purchase his lands, to give
him a new and extensive territory, to pay the expense of his removal, and support
him a year in his new abode? How many thousands of our own people would
gladly embrace the opportunity of removing to the West on such conditions!
59

Perhaps the most overriding emotion in Jackson’s efforts to acquire Indian
lands—especially in the South—was his personal concern for national security. Ronald
N. Satz writes that Jackson had an “overwhelming concern for the nation’s growth, unity,
and security.”
60
These beliefs go back to his days as an army general in the South in the
1810s. Early on, Jackson believed that obtaining Southern Indian lands was key to
national security. After the War of 1812, he was instructed to cease the army’s

58
Frelinghuysen, 319; and Sprague, 357.

59
Andrew Jackson, “1830 State of the Union Address.”

60
Satz, 9.

32
occupation and annexation of Indian lands. He defied these orders, earning the nickname
Sharp Knife among Indians.
61
After a convincing military victory and land acquisition
over the Creeks, General Jackson wrote to President Monroe, telling him that the
possession of the land added “an avenue to the defense of the lower country” which made
European invasion effectively impossible.
62
After the Indian Removal Act of 1830,
Jackson commented that the bill “strengthened the southwest frontier and rendered the
adjacent states strong enough to repel future invasions.”
63

While national security could have been the reason for the land grab, there might
be a more straightforward explanation: whites just wanted the land. In total, the US
added 100 million acres for $68 million and 32 million acres out west.
64
A few years
after, even Supreme Court Justice Smith Thompson remarked that “Indian occupancy
may be inconvenient to the state,” and it would be “very desirable, that the Cherokees
should be removed.”
65
Remarking that the present claims deserved to be more rigidly
questioned, Frelinghuysen asked and answered the question directly, “Who urges this
plea? They who covet the Indian lands.”
66
Forsyth rebutted, “Our opinions…were not
formed to suit our interests…there was no motive operating upon our minds to tempt us

61
Remini, 47.

62
Andrew Jackson, “Letter to James Monroe.” 6 January 1817. Quoted in Prucha, 528.

63
Andrew Jackson, “1830 State of the Union Address.”

64
Satz, 97; and Remini, 67.

65
Cherokee Nation v. Georgia.

66
Frelinghuysen, 318.

33
into erroneous judgments.”
67
Throughout the debate in both chambers, National
Republicans often charged the Democrats with trying to steal the land from the Indians.
New England Representatives spoke of “unjust purposes” and “mercenary motives.”
68

Sprague told the Senate that if they passed this bill, they would not be able to sleep at
night.
69
In one passage, Robbins addressed the Indians, “Ill-fated Indians…you have
lands which they want…your rights stand in their way.” He explained to the Indians that
the “proud and chivalrous” Southern states would not let not such a trivial cause get in
the way of adding more acres.
70
George Evans seemed to be frustrated that his
colleagues did not understand what Indian removal was truly about:
For what purpose does Georgia extend her laws over these Indians, but for
compelling them to remove? To enable her to get possession of the land? What
does Georgia gain by legislating over these Indians, unless it be their lands? We
all know the nature of the claim which Georgia sets up—that the soil of the Indian
country belongs to her—that its jurisdiction is in her—that the Indians are tenants
at her will, whom she may at any time remove…I understand that the States do
mean to have the land. It is the land they want.
71

Finally, coalition-building might have played a role in developing regime
preferences on Indian removal. Surely it did not escape Andrew Jackson—not to

67
Forsyth, 326.

68
Storrs, 994; and Ellsworth, 1026.

69
Senate Debate, Register of Debates, Sprague, 357. This is really a remarkable section in Sprague’s
speech. He lectured, “Sir, we cannot wholly silence the monitor within. It may not be heard amidst the
clashings of the arena, in the tempest and convulsions of political contentions; but its ‘still small voice’ will
speak to us—when we meditate alone at eventide—in the silent watches of the night—when we lie down
and when we rise up from a solitary pillow—and, in that dread hour, when, ‘not what we have done for
ourselves, but what we have done for others,’ will be our joy and our strength; when—to have secured,
even to the poor and despised Indian a spot of earth upon which to rest his aching head—to have given him
but a cup of cold water, in charity, will be a greater treasure than to have the conquerors of kingdoms, and
lived in luxury upon their spoils.”

70
Robbins, 377.

71
Evans, 1039.

34
mention, Martin Van Buren—that solidifying the South for years to come would be a
boon for the Democratic Party. The pledge to remove the Indians during the 1828
campaign had already played a large role in Jackson sweeping the Southern states.
72
But
passing the Indian Removal Act of 1830 was not just a political debt. Its impact was
determined to be so significant that passage of the bill would likely guarantee future
returns for the Jacksonians. Forsyth spoke of the frustrations of the South, noting that
Northern states had expelled Indian tribes (namely, New York and the Oneidas). He
wondered why other states were able to enact such policy but Georgia had to appease the
Cherokees. Given these sentiments, Jackson likely understood that “a proper Indian
policy was important for holding Georgia, Tennessee, Alabama, and Mississippi within
the party during a crucial election year.”
73
The same probably holds true for the entire
South, especially given rising sectionalism and the push for more slave-based agriculture.
Not surprisingly, Jackson’s 1830 State of the Union Address mentions Tennessee,
Alabama, Mississippi, and Louisiana by name as beneficiaries of the new policy.
74

Cherokee Nation v. Georgia
Armed with Congressional sanction, Jackson did not wait in his attempt to
displace the Southern tribes. Robert V. Remini argues that Jackson was obsessed with
Indian removal.
75
If his obsession ever came out, it was the period right after he signed

72
Satz, 11; and Richard P. Longaker, “Andrew Jackson and the Judiciary” Political Science Quarterly Vol.
71, No. 3 (September 1956): 341-364.

73
Longaker, 348.

74
Andrew Jackson, “1830 State of the Union Address.”

75
Remini, 45-82.

35
the Indian Removal Act. His 1830 State of the Union Address pressed the need to get the
Indians out west immediately. “The consequences of a speedy removal will be important
to the United States, to individual states, and to the Indians themselves.” He talked of
granting new western titles to the Indians “as soon as possible.”
76
Years later, the
rhetoric continued. In 1831, he hoped that the Chicasaws and Choctaws would be
removed within a year. A year later, he was “anxious” for a “speedy migration” that
“should be made without further delay.”
77
Perhaps the most telling sign was a couple
weeks before the House passed the bill. Jackson lobbied the Senate to follow through
with adequate funding. He admitted that “the pecuniary stipulations are large…[but that]
the amount of money which may be secured to be paid should, in my judgment, be
viewed as of minor importance…The great desideratum is the removal of the Indians.”
78

Keeping in mind that Jackson was anti-big government & national-debt eliminating
states-righter, it is quite remarkable that he would be willing to have the federal
government pay such a sum. I believe that this admission and acceptance speaks
volumes to Jackson’s wish to remove the Indians quickly.
Yet, for all of Jackson’s insistence and pressure, he could not get all of the tribes
to relocate fast. Of particular concern were the Cherokees. The Act had been passed in
large measure to remove the Cherokees, who occupied a large tract of land in Georgia.
Donald Cole describes the situation pretty earnestly, “Of all the Indian tribes that were

76
Andrew Jackson “1830 State of the Union Address.”

77
Andrew Jackson, “Special Message to House and Senate.” The American Presidency Project (15
February 1832).

78
Andrew Jackson, “Special Message to the Senate” The American Presidency Project (6 May 1830).

36
removed, none commanded more attention than the Cherokees.”
79
The Cherokees had
decided that they would pursue a litigation strategy and authorized the hiring of white
lawyers to present their case. William Wirt and John Sergeant—two nationally-
acclaimed lawyers and statesmen—represented the Cherokees. Specifically, the
Cherokees wanted to challenge the idea that Georgia could annul tribal laws and extend
her jurisdiction over Indian lands. Current Supreme Court Justice Stephen Breyer’s
article on the Cherokees and the Supreme Court is exhaustive in its legal-political
description and analysis.
80
Breyer notes that early on, “Wirt concluded that he could not
rely upon Georgia’s courts.”
81

The first opportunity to bring a case into federal court came when a Cherokee,
Corn Tassel, was arrested for a murder of another Cherokee on Indian lands. The
Georgia Guard arrested Corn Tassel on Cherokee territory, prosecuted the case in the
state’s own courts, convicted the accused, and sentenced him to hang.
82
Wirt appealed
the case to the Supreme Court on the grounds that a previous treaty stipulated that
Georgia had no jurisdiction over such a crime.
83
The Court filed the appeal, and
subsequently sent word back to Georgia to stay the execution in the meantime. Georgia’s
governor, George Gilmer, responded that the Supreme Court had no jurisdiction and that

79
Donald B. Cole, The Presidency of Andrew Jackson (Lawrence, KS: University Press of Kansas, 1993):
112.

80
Stephen Breyer, “The Cherokee Indians and the Supreme Court.” Journal of Supreme Court History Vol.
25, No. 3 (November 2000).

81
Breyer, 220.

82
McLoughlin points out that Corn Tassel was arrested by state officials, and not Cherokee police.
McLoughlin, 439.

83
McLoughlin, 439.

37
he would not comply with any such demands. The state legislature then resolved, “that
the State of Georgia will never so far compromise her sovereignty as an independent state
as to become a party to the case sought to be made before the Supreme Court.” Two days
later, Corn Tassel was hanged; the issue became moot, and the Cherokees dropped the
case.
84

In 1831, Wirt filed Cherokee Nation v. Georgia, which sought an injunction to
prohibit Georgia from enforcing her laws on the Cherokee territory. Like the previous
case, Georgia did not respond in paper or presence before the Supreme Court. At oral
argument, Wirt recognized the jurisdictional issues raised by the case. He argued that the
Court could hear the case, though, because it had original jurisdiction over all cases in
which an individual state was one of the parties. Now, the Eleventh Amendment did not
allow citizens of one state to sue another. But Wirt maintained that the Cherokee tribe
was not a citizen of a state. In fact, he believed that the Cherokees composed a separate,
sovereign, and possibly foreign state. The Court disagreed, with Chief Justice John
Marshall writing that the Supremes did not have jurisdiction. Marshall agreed that the
Court’s original jurisdiction included cases between individual states and foreign states.
The Cherokees, though, did not comprise a foreign state. They were “domestic
dependent nations…not a foreign state in the sense of the Constitution, and [therefore, the
Court] cannot maintain an action in the courts of the United States.”
85

84
Breyer, 220. See also Marshall’s opinion in Cherokee Nation v. Georgia where he talks about the Corn
Tassel case.

85
Cherokee Nation v. Georgia.

38
While the actual ruling went against the Indians, they had much to celebrate.
Looking back, four things fell in the Cherokees’s favor. First, although Marshall ignored
it completely in his decision, counsel for the Indians had provided an argument that
would become important a year later. As Breyer explains, “The first paragraph of Article
III, Section 2, says that the ‘judicial Power’ of the United States also shall extend to cases
‘arising under…Treaties.’ The Cherokees had argued that their case arose under a
treaty.”
86
Second, Marshall basically announced that he would like to keep the issue on
the Supreme Court’s agenda. He wrote, “The mere question of right [i.e., whether
Georgia could extend her laws over the Cherokees] might perhaps be decided by this
court in a proper case with proper parties.”
87
G. Edward White comments that Marshall
“wanted the substantive issues raised by Georgia’s dispossession of the Cherokees aired.”
In fact, Marshall “was anxious to keep the ‘Cherokee question’ in the public domain so
that pressure for a ‘proper case with the proper parties’ would continue.” White believes
that there could only be one explanation: “This was a clear intimation that only the
federal government could succeed to Indian lands.”
88

Third, and perhaps most importantly, Justice Smith Thompson penned a dissent
(with which Justice Joseph Story concurred) that expressed the views of the Cherokees.
He was disappointed that the Court had not taken up the merits of the case because he
believed that the Court had jurisdiction. Thompson wrote, “They form a sovereign state.

86
Breyer, 221.

87
Cherokee Nation v. Georgia.

88
See G. Edward White, The Marshall Court and Cultural Change, 1815-1835 (Oxford: Oxford University
Press, 1991): 724-732.

39
They have always been dealt with as such by the government of the United States.” He
believed that they were not citizens of the United States because an 1817 treaty provided
Indians had the option of becoming citizens. Thompson seemed puzzled: how could “a
nation composed of aliens or foreigners be [anything] other than a foreign nation?” He
provided a provoking counterfactual. “Suppose the Cherokee territory had been occupied
by Spaniards or any other civilized people. Would it not…be considered a separate and
distinct nation or state?” Towards the end, Thompson quickly noted that the merits
warranted granting an injunction and likely striking down Georgia’s laws as violating US
treaties.
89
Interestingly, Thompson originally had no intention of writing a dissent until
Marshall prodded him to do so. Joseph Story privately wrote to the Court’s reporter,
“Neither Judge T. or myself contemplated delivering a dissenting opinion [in the
Cherokee Nation case] until the Chief Justice suggested to us the propriety of it, and his
own desire that we should do it.”
90

Lastly, the decision emboldened Georgia to become more rigid in her approach
towards Indian relations. Breyer notes that she sent additional guards to the gold fields to
stop Indians from mining.
91
She also passed a new series of laws that further restricted
Cherokee independence. One of these laws became the springboard for Wirt to create the
“proper case with the proper parties.”

89
Cherokee Nation v. Georgia.

90
Quoted in White, 730.

91
Breyer, 222.

40
Worcester v. Georgia
After Cherokee Nation v. Georgia, the Peach State passed more laws concerning
Indian regulation. Ironically, the laws that actually dealt with the Indians themselves—
such as the one that prohibited Indians from assembling as a legislature—did not create a
stir.
92
Instead, a law dealing with whites provided the Cherokees with an opportunity to
again take their claim to the Supreme Court. Georgia had declared that any white person
residing in Cherokee territory had to obtain a license or permit from “his excellency the
governor.”
93
Whites on Cherokee land were also required to take an oath of allegiance to
obey the laws of Georgia.
94
Failure to comply resulted in a high misdemeanor,
punishable by hard labor for at least four years.
95
Governor Gilmer sent word to
Christian missionaries serving in Indian lands that they had to swear allegiance. Some of
them refused, including Samuel Worcester, who wrote back, “I could not conscientiously
take the oath which the law requires.”
96
Gilmer imprisoned 11 missionaries who rejected
the oath. After being sentenced to four years of hard labor, Gilmer offered the
missionaries a pardon if they would take the oath. Nine of them took the governor’s
offer. Worcester and Elizur Butler declined.
They appealed to the Supreme Court. “Here was the case Wirt had been waiting
for,” Breyer remarks. “Georgia would not treat Worcester as it had treated Corn Tassel,

92
Worcester v. Georgia, 31 U.S. 515 (1832).

93
Worcester v. Georgia.

94
McLoughlin, 441-442.

95
Worcester v. Georgia.

96
Quoted in Breyer, 222.

41
whom it had executed post haste. Nor would Georgia release Worcester.”
97
In the
meantime, former pro-removalist Congressman Wilson Lumpkin had taken over as
governor of Georgia. Not one to sympathize with Indian supporters, Lumpkin said he
would “disregard all unconstitutional requisitions [and] resist federal usurpation.” The
state legislature resolved that a Court reversal “will be held by this state as
unconstitutional.”
98
When the Court heard oral arguments, Georgia again refused to
appear.
Marshall released the Opinion of the Court only 9 days after argument. Unlike
Cherokee Nation, jurisdiction in this case was not a problem. In the first case, the
plaintiff was a “domestic dependent nation,” which lacked the standing to sue Georgia.
Worcester, on the other hand, was a white man. He represented the kind of “proper
party” that Marshall alluded to in his previous opinion. Additionally, Worcester
ultimately involved the validity of a treaty. That is, at issue, was whether Georgia law
could supersede US-Cherokee treaties. Marshall’s decision read, “They also draw into
question the validity of a statue of the state of Georgia, ‘on the ground of its being
repugnant to the Constitution, treaties, and laws of the United States.’” Therefore,
Marshall believed, it was “too clear for controversy” that the Court had jurisdiction in the
case.
99

Counsel knew jurisdiction would not be the pressing issue in Worcester.
Accordingly, Wirt stuck to the merits during orals. He argued that intercourse with the

97
Breyer, 223.

98
Quoted in Breyer, 223.

99
Worcester v. Georgia.

42
Indians was an exclusive power of the federal government. Evidenced by repeated
negotiations and treaty signings, the feds had accepted and embraced this responsibility.
States, on the other hand, did not have such authority. Counsel maintained, “[The] laws
of the state of Georgia…are repugnant to the aforesaid treaties; which, according the
Constitution of the United States, compose a part of the supreme law of the land; and that
these laws of Georgia are, therefore, unconstitutional, void, and of no effect.”
100

Marshall talked through US-Cherokee treaties, saying that the Cherokees were
under the protection of the federal government, a claim the Indians acknowledged
themselves. Marshall then elaborated, “Protection does not imply the destruction of the
protected.” These treaties—which were “now in full force”—both recognized the
national character of the Cherokees and guaranteed their right to self-government. The
treaties also considered “Indian territory as completely separated from that of the states;
and provide that all intercourse with them shall be carried on exclusively by the
government of the union.” Marshall then put the logic together:
The Cherokee nation, then, is a distinct community occupying its own
territory…The act of the state of Georgia, under which the plaintiff in error was
prosecuted, is consequently void, and the judgment [of the Georgia court is] a
nullity…[because] they interfere forcibly with the relations established between
the United States and the Cherokee nation, the regulation of which, according to
the settled principles of our Constitution, are committed exclusively to the
government of the union.
101

100
Worcester v. Georgia.

101
Worcester v. Georgia.

43
Jackson’s Response

As soon as the case was properly remanded to Georgia’s courts and state judges
issued a proper ruling—as detailed by the Chief Justice of the United States—Samuel
Worcester would be free to go. A series of rules and actions, however, kept the
missionary in jail. First, the Supreme Court did not outright order Georgia to release the
prisoners. According the Judiciary Act of 1789, the Supremes could only issue such an
order after a case had been remanded and the authorities in question refused to act. And
unfortunately for Worcester, the Court was out of session and would not reconvene until
the next year. As a result, “Marshall’s decision hung suspended in time.”
102
Of course,
true to form, Georgia resisted the Court’s ruling. Governor Lumpkin had even declared
that despite the Court’s attempt to overthrow the rightful jurisdiction of the state, he
would steadfastly “meet this usurpation of federal power with the most prompt and
determined resistance.”
103
Just as Justice Story had predicted, “Probably she [Georgia]
will resist the execution of our judgment, and if she does, I do not believe the president
will interfere.”
104

Story was right: Andrew Jackson had no intentions of enforcing the decision.
One line of reasoning could be that Jackson did not believe that the Court’s decision
necessitated—or even allowed—the president to implement the decision. The Court
remanded the case back to the state, calling upon Georgia, not the president, to act. More
likely, Jackson did not like the ruling, and therefore stubbornly refused to enforce it.

102
Remini, 70.

103
Quoted in Breyer, 224.

104
Quoted in Breyer, 224.

44
Richard P. Longaker concurs, “No doubt, if Jackson had believed it possible and
desirable to enforce the law against Georgia, he would have done so.”
105
Jackson himself
mentioned that “the decision of the Supreme Court has fell stillborn, and they find that it
cannot coerce Georgia to yield to its mandate.”
106
Now, maybe there is a procedural
explanation for why Old Hickory would make this remark. Perhaps he believed that the
ruling did not call upon the president to execute the decision, but rather simply remanded
the case back to Georgia, where her judiciary and executive would rightfully deal with
Marshall’s decision. But as one Congressman at the time noted, “General Jackson could
by a nod of the head or a crook of the finger induce Georgia to submit to the law.” The
pragmatic ability of Jackson to induce compliance should not be questioned. His legal
ability to do so was but a cover for the lack of will.
Jackson simply did not want to enforce the decision. Longaker puts it pretty
bluntly, “Respect for the Marshall Court was not a part of the Jacksonian creed.”
107
The
common story is that upon hearing about the decision, Jackson quipped, “John Marshall
has made his decision; now let him enforce it.” There is no hard evidence that Jackson
ever said these words. They come from someone who told Horace Greeley about the
line.
108
One thing that Longaker points out is that the phrase reads, “John Marshall…”
and not “The Supreme Court…” He believes that a major reason Jackson refused to

105
Longaker, 347.

106
Quoted in Remini, 71.

107
Longaker, 341.

108
Given the scant evidence, many historians do not believe that Jackson ever quoted it. Though I cannot
determine whether or not he actually said it, its tone and combativeness undoubtedly sounds like something
Jackson would say.

45
follow through on Worcester was because the president held such a personal animosity
towards the Chief.
109
And although the fabled quote might be historically fabricated,
there is still weighty evidence that points to such sentiments. For instance, he “sportively
said in private conversation that if [called to] support the decree of the Court, he will call
on those who have brought about the decision to enforce it.”
110
While it does not have
the flamboyance or flair of the famous quip, the substance is exactly the same.
In addition, two days after the decision was released, the Washington D.C.
correspondent for the New York Daily Advertiser reported that Jackson had responded to
the decision by saying, “He has as good a right, being a coordinate branch of the
government, to order the Supreme Court; as the Court have to require him to execute its
decision.”
111
Keith Whittington would probably argue that this quote could be attributed
to Jackson’s Constitutional vision of departmentalism. That is, Jackson believed that
every branch had an equal opportunity to interpret the Constitution whenever they were
called upon to perform their institutional duties. When—or if—he was called upon to act
on Worcester, he would not because he believed the ruling itself was unconstitutional.
112

Procedurally, Whittington’s explanation makes a lot of sense in this case. McLoughlin
would agree: “[Jackson] believed that his judgment on the Cherokee case was as good as

109
Longaker, 342.

110
Quoted in Remini, 71.

111
Quoted in Edwin A. Miles, “After John Marshall’s Decision: Worcester v. Georgia and the Nullification
Crisis,” Journal of Southern History Vol. 39, No. 4 (November 1973): 519-544.

112
Whittington, Political Foundations of Judicial Supremacy.

46
John Marshall’s.”
113
Given Jackson’s veto message on the Bank of the United States, he
probably did subscribe to departmentalism, perhaps more than any other president in US
history.
114
However, in this case, I believe that his inaction was more due to his
substantive concerns with the issue at hand rather than his Constitutional visions
regarding the coordinate relationship among the different branches of the federal
government.
The Fallout
Georgia did not release the prisoners. And Jackson did not intervene. When
nothing happened, Congressman John Quincy Adams asked the House to order Georgia
to follow through on Marshall’s declaration. Vituperation returned to Congressional
deliberation. Southerners were especially hostile, and it is here—not in the nullification
crisis—where non-cooperation, secession, and civil war are first mentioned. Georgian
John Clayton announced that the Court had produced “a decision which he hoped and
believed would be resisted with the promptitude and spirit which became Georgians, and
which he was very sure never would be executed till Georgia was made a howling
wilderness.”
115
Later, on he added, “[One] is mistaken if he thinks he can go on and
march through Georgia, and crush the rebels. I say that Georgia will not submit to the
decision which has been made.”
116
Defiance was not the only order of the day; violence
was also mentioned. Congressman Foster warned the House, “If a state refuses

113
McLoughlin, 444.
114
See Andrew Jackson, “Veto Message,” The American Presidency Project (10 July 1832).

115
Representative Augustin S. Clayton, 22
nd
Congress, 1
st
Session. Register of Debates, 2014.

116
Clayton, 2026.

47
obedience to a law of Congress or a judgment of the Supreme Court…[and] the federal
government persists and the state will not yield, it must end in revolution or subjection by
force.”
117
William Drayton of South Carolina forewarned that pressuring Georgia to do
something she really didn’t want to do would “only add fuel to the flame.”
118

In a strange turn of events, Worcester applied for, and was granted, a pardon. All along,
Governor Lumpkin had wanted to pardon the missionaries so as to avoid the inevitable
political battle. He could not issue an outright pardon, though, because to do so would
tacitly condone their refusal to sign an oath, as well as perhaps accede to the Court’s
ruling. Fortunately for Lumpkin, Georgia Unionists were able to persuade Worcester to
write to the governor and ask for a pardon.
119
Worcester’s first letter to Lumpkin was not
penitent enough; Worcester wrote that he believed his course of action was still just. So
he composed a second letter asking for “the magnanimity of the state” to pardon him.
The governor then released Worcester from jail. Lumpkin’s pardon message defended
Georgia’s course of action and crowingly declared (three times) that Worcester was only
released because of “the magnanimity of the state.”
120

Conclusion
Looking back, this was the best course of action for Jackson, his coalition, the
Supreme Court, and the missionaries. The president did not have to execute a decision

117
Representative Thomas Foster, 22
nd
Congress, 1
st
Session. Register of Debates, 3409.

118
Representative William Drayton, 22
nd
Congress, 1
st
Session. Register of Debates, 2023.

119
Miles, 538. Breyer notes that it was friends of Lumpkin’s who appealed to the missionaries. I’m not
sure if Lumpkin’s friends would have been Unionists. It could have been one or the other, or both. See
Breyer, 225.

120
Miles, 541.

48
that stood directly in the way of his administration’s goals. The Democrats succeeded in
legislating Indian removal and having the policy survive the judicial system. Even more
important, Jackson was to capture the Deep South by standing firm on Indian removal.
Although Georgia and Jackson disobeyed Marshall’s decision, one could reason that the
rule of law played a role in the final outcome, and that judicial supremacy forced the
governor and/or Worcester into a pardon. Of course, the big losers were the Indians, who
had their day(s) in court, eventually won, but never saw the fruits of their victory. After
Worcester, Jackson pursued Indian removal with “obsessive” vigor. The Indians were
removed to West of the Mississippi; the Cherokees perhaps suffering the most on the
Trail of Tears.
When Andrew Jackson heard about John Marshall’s decision, he could have
believed that the Chief Justice had instructed the Georgia courts to follow through on the
case. More likely, though, Jackson did not agree with the ruling. Combined with the
personal and political importance placed on Indian removal, he found it more
advantageous to not execute Worcester. The whole state of affairs can likely be
attributed to the personnel that staffed the Court in 1832. Although the Federalist Party
had been pretty much extinct after 1800, the Great Chief Justice remained on the
Bench.
121
Moreover, a number of holdovers from the previous regime still sat on the
Supreme Court at the close of Jackson’s first term. (See table below)

121
Of course, remnants of the Federalists still remained in New England into the 19
th
century.
Additionally, portions of the old party influenced the National Republican Party. See Mark Graber,
“Federalist or Friends of Adams: The Marshall Court and Party Politics” Studies in American Political
Development (1998): 229-266.

49
Table 5. Worcester Court.
Justice Year Appointed President Party
John Marshall 1801 John Adams Federalist
William Johnson 1804 Jefferson Jeffersonian
Gabriel Duvall 1811 Madison National Republican
Joseph Story 1812 Madison National Republican
Smith Thompson 1819 Monroe National Republican
John McLean 1830 Jackson Democrat
Henry Baldwin 1830 Jackson Democrat

In total, five of the seven Justices, in 1832, were not Democrats, and could not be
counted on to vote reliably in the direction preferred by the elected regime. It is no
wonder that Worcester was decided the way it was—the preferences of a majority of the
Court was politically against Indian removal, as well as committed to the judicial
supremacy in federal politics.
Jackson carried a sweeping electoral mandate. But his presidency was the first in
a period marked by Democratic dominance. The “reconstructive” president
122
can expect
to face a hostile Supreme Court because the Court is not subject to electoral procedures.
Thus, although the regime might be able to realign Congress and the presidency in a
single election, transforming the Court takes more time. This does not mean, however,
that the newly elected regime cannot take advantage of the Court. The New Guard can
consolidate its constituency by passing policies that are of the highest salience. If the Old
Guard Court stands in the way of those policies, the New Guard president and Congress
can publicize the issue and signal to key constituents that they are willing to fight for
prized causes. Indian removal falls into this model. Georgia, Alabama, and Florida all
desired to transplant their Indians out west. The Indian Removal of 1830 sought to do so,

122
Skowronek.

50
but the Marshall Court stood in its way. By refusing to enforce Worcester v. Georgia,
Jackson appealed to those states—states that soon became some of the strongest
Democratic supporters.

51
Chapter 3: Jacksonian Era—Stage 2
Antebellum Democrats believed they were the rightful descendents of the old
Jeffersonian Party. As caretakers of the original Jeffersonian ideology, it is no surprise
that the Democrats believed strongly in expansive states rights, which could only be
achieved with a concurrent limited federal government. Although a few issues sparked
some nationalism in the Democrats, one of the main themes throughout the period was
the fight to expand states rights and constrict federal authority. After the party
consolidated its followers—largely through its handling of Indian removal—one of its
main goals was to devolve power back to the states. Devolution worked towards both the
political and policy goals of the regime. Politically, the coalition’s followers preferred a
more limited government with stronger states rights. In terms of policy, the Democratic
ideology demanded a states rights stance on some issues (e.g., slavery) and a limited
government stance on others (e.g., National Bank).
The Supreme Court was a major player in pursuing these ideals. The Court took
on some cases that limited the federal government; it took on even more that expanded
the rights of states. A large number of appointments allowed Democrats to control the
Bench. After they obtained a majority, the Taney Court was a willing, and very
influential player in taking on this part of the regime’s goals. But appointments are not
the only story here; it is also the nature of the Court’s actions, including which cases to
take on, how to decide them, and the tone and scope of those decisions. The Court surely
helped fulfill the political goal of the regime by delivering on promised issues. But in
terms of states rights and limited government, the Court primarily helped carry out the

52
policy goal of the regime. In addition, the Court did not address either of them in the
same way that Congress or the president might. Fitting for its legal foundation, the Court
took a more Constitutional approach. In this second stage of the Jacksonian era, the
Democratic Party employed the Court to implement its ideological visions. This
implementation had some political implications. But in Stage 2 of the Jacksonian cycle,
with the party’s political power already consolidated, the Court turned much more
aggressively towards the policy goal.
This first half of this chapter details the evidence in support of my claim that the
Democrats believed in limited government and states rights. I start by taking on the best
arguments against this claim: that the Democrats wanted an expansive federal regulation
of fugitive slave law, and that they authorized immense presidential power. I then move
into the main issues where Democrats expressed a strong preference for the
aforementioned ideals. The second half of the chapter deals with 10 Supreme Court
cases that involved issues of federalism and federal power. Three of the cases seem to
run contrary to the thesis. That is, they appear to have a nationalist bent. I discuss some
of the intricacies involved in those cases. Then I move on to the 7 cases in which the
Taney Court firmly upheld the coalition’s preferences. Finally, in the conclusion, I
discuss the relationship between the Supreme Court and the regime in Stage 2 of the
realignment cycle. I talk about the regime’s first handful of appointments, and how they
helped swing the tide. After becoming a fully cooperative partner with the elected wing
of the regime, the Court pursued the party’s strategy of implementing its policies.

53
Uniquely constituted, the Taney Court could help the regime with implementation in
ways that the other branches could not.
Fugitive Slave Law
The Democrats politically dominated the 19
th
-century South. Nowhere in the
country were states rights held with such esteem. A political party built with states rights
as a major plank suited Southerners perfectly. They were people who had politically
matured under anti-Federalism, and then Jeffersonianism. Historically, they believed that
the only way to secure liberty was by restraining the federal government from taking on
too many powers. Many contemporaries—as well as many historians—believe this
obsession with states rights and a limited federal government was only a cover for
wanting to protect slavery. If the issue could just be boiled down to federalism, the South
would have a perpetual defense for her most sacred institution. Ironically, the one issue
in which the South believed the feds had extremely extensive powers was in the recapture
of fugitive slaves. Historians like to point out the inconsistency between the states-rights
South and the constant drive to impose a fugitive slave law backed, funded, and executed
by Washington. This came out primarily in the debates on the Compromise of 1850,
where a new fugitive slave code was contemplated.
One of the biggest issues in the debates on the Fugitive Slave Law of 1850 was
the perception of Northerners. Statements such as “It must always be a question whether
such a person be your slave, or whether he be our freeman” did not help.
123
Trying to
quell Southern hostility, Democratic Senator David Atchison of Missouri admitted that

123
Senator Robert C. Winthrop, 31
st
Congress, 1
st
Session. Congressional Globe, 1585 (appendix).

54
there were only “a very few citizens of the free states” who helped thwart the capture of
fugitive slaves. “But there are enough of them engaged in this business to make it a
matter of serious importance to the people of the border states,” Atchison relented.
124

James Mason, author of the 1850 bill, was not as optimistic. He spoke of the
“impossibility of reclaiming a fugitive when he once gets within the boundaries of a non-
slaveholding state.” This was because “every difficulty is thrown in the way” not only in
the discovery of a fugitive, but also in the judicial processing of sending him back to the
South.
125
Future Republican Salmon P. Chase did not help erase notions of radical
northerners. He announced that the Supreme Court’s decision in Prigg v. Pennsylvania
(which aided fugitive slave capture) was wrong. Chase said, “I do not believe that a slave
claimant can go into any state of this Union and take a person under the protection of its
laws.”
126

Continuing the belief that Northern citizens were adamantly against the capture of
fugitive slaves, a major discussion point turned on whether juries could honestly process
fugitives. William Dayton, a Whig from New Jersey, believed that juries were the
rightful referees in fugitive slave cases.
127
His partisan colleague from Massachusetts
pointed out that juries in Iowa had returned slaves and awarded damages, and could

124
Senator David Atchison, 31
st
Congress, 1
st
Session. Congressional Globe, 1601 (appendix).

125
Senator James Mason, 31
st
Congress, 1
st
Session. Congressional Globe, 1583 (appendix).

126
Senator Salmon P. Chase, 31
st
Congress, 1
st
Session. Congressional Globe, 1587 (appendix).

127
Senator William L. Dayton, 31
st
Congress, 1
st
Session. Congressional Globe, 1584 (appendix).

55
therefore be counted on.
128
Mason, though, would have none of it. He, along with other
Democrats, believed that specially appointed commissioners were required to process
fugitive slaves.
129
Jefferson Davis most clearly articulated the Democratic logic: “If it is
admitted that the law cannot be executed because of the opposition to it, growing out of
the popular feeling, the jury reflecting that popular feeling will decide against it.”
130

During the deliberation, Thomas Pratt introduced an amendment to the bill that
raised a good deal of debate among Southerners. It read, “If such fugitive be not
delivered up…then it shall be lawful for such claimant or claimants to institute
suit…against the district attorney of the United States for…the value of such fugitive.”
131

The Pratt Amendment would essentially make the federal government financially
responsible for any runaway slaves. Pratt explained that it was the government’s
responsibility to protect property; and if the feds couldn’t fulfill that duty, it was up to
Washington to compensate slaveholders. The amendment was defeated by a 10-27
margin, with Southerners split. Don Fehrenbacher explains that the division was a result
of the difference between the Deep South and the border states, the latter being more
susceptible to runaway slaves because of the proximity to free states. Fehrenbacher also
notes, “reimbursement for fugitive slaves out of the national treasury could not easily be

128
Winthrop, 1585 (appendix).

129
Senator Mason, 1584 (appendix).

130
Senator Jefferson Davis, 31
st
Congress, 1
st
Session. Congressional Globe, 1588 (appendix).

131
Senator Thomas G. Pratt, 31
st
Congress, 1
st
Session. Congressional Globe, 1591 (appendix).

56
accommodated to Southern Constitutional theory or to Southern concern about the
impingement of federal power on the slaveholding system.”
132

Regarding the impingement of federal power on slavery, Jeff Davis expressed his
concern that it would set the precedent of abolition through compensation, a proposition
Southern Democrats had been fighting for years.
133
In reality, though, this really should
not have been a concern. As Pratt pointed out, total manumission wouldn’t be a problem
because it would cost $1.6 billion, or twice the annual income of the country.
134
The real
concern then, was probably Davis’s other objection, that “such a proposition as this
would hold the Treasury of the United States responsible.”
135
Hopkins Turney, a
Democrat from Tennessee, voted against the amendment because he found the
amendment “monstrous.” He explained, “I could not entertain it; I could not think of
voting for such a proposition. Where do you find any power to authorize Congress to
make an appropriation of money to pay for runaway negroes?”
136

The bill’s passage in the House of Representatives was much more subdued than
in the Senate. In fact, there really was no debate as Pennsylvania Democrat James
Thompson railroaded it through in a single afternoon. It passed 109-76, largely because
Northern Democrats joined Southerners of both parties.
137

132
Don E. Fehrenbacher, The Slaveholding Republic (Oxford: Oxford University Press, 2001): 229.

133
Davis, 1614 (appendix).

134
Pratt, 1591 (appendix).

135
Davis, 1614 (appendix).

136
Senator Hopkins Turney, 31
st
Congress, 1
st
Session. Congressional Globe, 1616 (appendix).

137
Fehrenbacher, 230.

57
Perhaps Southerners believed that this was one of the very few powers that the
Constitution bestowed upon the federal government. After all, the Constitution did
explicitly recognize recaption as a duty of the federal government. Also plausible is that
the South realized she did not have the resources to march into the North and reclaim
slaves. Throw in what they perceived as uncooperative immediatists in the North bent on
destroying slavery, and one can better understand why the South felt it incumbent upon
Congress to deal with the issue. Still, many historians like to report that the South simply
could not reconcile her states rights philosophy with her belief that the national
government was responsible for capturing fugitive slaves. There is an intuitive logic to
that reasoning; it does seem convenient that the federal government could try its hand at
this issue. But I do not think it was that simple. The defeat of the Pratt Amendment
demonstrates that Southerners still believed in a limited government. Though capturing
fugitive slaves was important to Southerners, they would not trade recaption for
increasing the scope of the Treasury. Moreover, though the South clamored for federal
intervention, they did not hold out the responsibility that each state carried. As Democrat
Andrew Butler explained to the Senate, “While Congress may pass laws to some extent
requiring their own officers to do their duty, it does not absolve the states at all from their
obligation to act under the Constitution, and to carry out its provisions.”
138

The Tariff and Nullification
Another issue where the Democrats might have seemed more federally oriented
was with the tariff and, especially, in response to South Carolina’s nullification. Jackson

138
Senator Andrew Butler, 31
st
Congress, 1
st
Session. Congressional Globe, 1588 (appendix).

58
found himself in favor with the most unlikely company. Joseph Story wrote to his wife,
“since the last proclamation and message, the Chief Justice [Marshall] and myself have
become his warmest supporters.”
139
Jackson enjoyed bipartisan popularity. Daniel
Webster—one of the most anti-Jackson politicians of the period—even personally
reached out to Old Hickory. The president toured New England, where the last remnant
Federalists still dominated. He was welcomed there with huge ovations. Harvard
College even granted the ex-Tennessee frontiersman an honorary LL.D.
140
It was a
remarkable turnaround, especially considering Marshall and Story were the holdovers of
Jackson’s previous political opposition, and New England was soon becoming the
foundation of the new Whig Party, a party primarily founded on being anti-Jackson!
How did Old Hickory do it? He fought for the Union and took an overwhelmingly
nationalist stance against nullification. And while it seems like a 180-degree turn from
traditional Jacksonian notions of limited government & states rights, it can be reconciled
with those views.
The story begins with Henry Clay’s grand vision of an American System. Clay’s
recipe for a national ideology included three ingredients, which worked together. First, a
high tariff would raise revenue for the federal government. These funds would then be
placed in a National Bank, which would make loans to prospective Western settlers.
Finally, a good percentage of the money would be allocated to internal improvements.
These roads and canals would link the nation together, a symbolic and pragmatic signal

139
Quoted in Longaker, 361.

140
Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815-1848 (Oxford:
Oxford University Press, 2007): 410.

59
of the country’s unity. Despite taking over the elected branches in 1828, Democrats did
not knock down the protectionist tariff. In 1832, Congress reassessed the tariff, where
Congressman John Quincy Adams drafted a compromise tariff that all Southerners—
except South Carolinians—felt comfortable with.
141
Although still mildly protectionist,
they cut the average duties of the 1828 tariff in half.
142

It is important to recognize two features of the 1832 tariff. First, the implemented
rates were not perfectly in line with Jacksonian preferences. Although Jackson
convincingly won reelection and the House of Representatives held a large Democratic
advantage, the Senate was actually controlled by anti-Jacksonians. In order to modify the
1828 rates, at least a few anti-Jackson Senators were going to have to be won over. The
reality: a complete overhaul of the 1828 tariff was just not politically feasible. In light of
that fact, the Jacksonians did well to lower the rates and pass a tariff that almost all
politicians could agree to. Secondly, just because the 1832 tariff was not the exact tariff
Democrats wanted did not mean that Democrats did not believe that tariff prescription
was in the purview of Congressional authority. A common ploy in American politics is
to turn a losing battle in Washington into an issue of federalism.
143
This was not the case
with the tariff. Democrats understood that they could not get the perfect tariff; but they
did not turn to states rights. The reason? They believed that the responsibility to set
tariff duties absolutely and exclusively belonged to the federal government. Indeed, it is

141
Howe, 402.

142
Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln (New York: Norton, 2005): 374.

143
For example, in today’s political arena, Democrats like to think of medicinal marijuana as an issue that
each state should deal with individually. Meanwhile, Republicans tout abortion as a states rights issue.
143

60
hard to argue otherwise. The enumerated powers explicitly list the power to lay and
collect duties as a Congressional prerogative. Describing the Jacksonian views on tariff
responsibilities, Sean Wilentz comments, “[Even] by the strictest reading of the US
Constitution, there could be no doubt…[and] no ambiguity about the tariff’s
Constitutional correctness.” Personally, “Jackson’s guardianship of state rights always
allowed that the federal government had legitimate powers, in no ways at the whim of the
state governments.”
144
This was not incompatible with Democratic adherence to states
rights. Though the Tenth Amendment was a strong force in Democratic ideology, they
did believe that there were powers specifically delegated to only the central government.
Jackson himself said:
No one, fellow citizens, has a higher reverence for the reserved rights of the states
than the magistrate who now addresses you. No one would make greater personal
sacrifices or official exertions to defend them from violation; but equal care must
be taken to prevent, on their part, an improper interference with or resumption of
the rights they have vested in the nation.
145

South Carolina was displeased with the 1832 tariff, to say the least. Despite
significantly lowering rates, it was not a dramatic enough break with the 1828 Tariff of
Abominations. They attacked the tariff on a number of fronts. Foremost, of course, was
that it protected Northern industry while simultaneously raising Southern consumer
prices. House Ways and Means Chairman George McDuffie earned fame for his “forty
bale” theory, which said that the tariff virtually destroyed forty out of every hundred
bales of cotton. More obsessively, the Palmetto State argued that the tariff was a

144
Wilentz, 380-382.

145
Andrew Jackson, “Proclamation 43: Regarding the Nullifying Laws of South Carolina” The American
Presidency Project 10 December 1832.

61
Northern abolitionist assault on slavery. The Columbia State Rights and Free Trade Party
emerged as a statewide third party, declaring that the tariff was meant to produce “the
abolition of slavery throughout the Southern states.”
146
A state convention was held to
discuss the tariff. There, the delegates concluded that the states were older than the
Union, had formed a confederate compact, and therefore were still sovereign. Continuing
the logic, states had every right to void any federal legislation deemed unconstitutional;
they could even secede. Predictably, they voted that the tariff of 1832, as well as the
1828 tariff, were unconstitutional, and therefore nullified in the state of South Carolina.
Put simply, South Carolina would not impose the rates prescribed by the federal
government.
Jackson responded swiftly and decisively. He delivered what has become known
as his Nullification Proclamation, a sweeping Constitutional justification of the
“impracticable absurdity” of nullification. He explained that appeals of Constitutionality
of Congressional acts could only take place through the judiciary and the amendment
process. It certainly was not the intent of the framers, because if so, the Union would
have “dissolved in its infancy.” Jackson scoffed at all points of South Carolina’s logic.
The nation was older than the states. Moreover, he pointed out that the Constitution
“forms a government, not a league,” and therefore, nullification was not an option.
147

Such authority, he believed, was “utterly repugnant” to the ideals of the general
government and the ends it desired. It was a “hazard [to] the liberties and happiness of

146
Quoted in Wilentz, 379.

147
Jackson, “Proclamation 43.”

62
the millions composing this nation.”
148
To Jackson, nullification was tantamount to
secession.
149
And he advised the nation, “Disunion…is treason.” In sum:
I consider, then, the power to annul a law of the United States, assumed by one
state, incompatible with the existence of the Union, contradicted expressly by the
letter of the Constitution, unauthorized by its spirit, inconsistent with every
principle on which it was founded, and destructive of the great object for which it
was formed.
150

Given those statements, and the enthusiasm with which he struck back at
nullification, it is easy to believe how the likes of Story, Marshall, and Webster could
warm up to the president. As a Democrat, Jackson was admittedly, and proudly, a states
righter. But he would not tolerate nullification or secession. And while his rejoinder
seems heated, his political reaction was quite calculated. It involved a carrot and a stick.
The carrot was a call for an eventual downscale of the current rates. Jackson’s State of
the Union called upon Congress to set tariff duties at rates that were adequate for national
defense. (In terms of tariffs, of course, this was the ultimate Jacksonian goal.) More
ominously, Jackson asked for Congress to authorize the president to use force.
Specifically, he wanted the Congressionally-approved authority to call up federal troops
and state militia without warning South Carolina, should the nullifiers take over federal
property.
151
Congress passed both the Compromise Tariff of 1833 and Jackson’s Force
Bill on the same day.
152
Together, they defeated nullification.

148
Andrew Jackson, “Special Message to the Senate and House of Representatives” The American
Presidency Project 16 January 1833.

149
Howe, 405.

150
Jackson, “Proclamation 43.”

151
Wilentz, 384.

63
The Force Bill passed the House with more than a three-quarters majority; in the
upper house, only one Senator dissented. The Democratic acquiescence to such an
exertion of federal—and presidential, no less—power appears to refute the thesis that
they were interested in limited government. On the contrary, though, a deeper
investigation of the Congressional debates on the Force Bill show that Jacksonians did
not contradict their fundamental ideals. For starters, most Congressmen, regardless of
party, saw the issue in terms of anarchy. Senator Forsyth stated plainly, “South Carolina
is upset because she has not gotten her way.”
153
Many legislators believed that allowing
a state to nullify or secede for such immature reasons would lead to lawlessness. The
table below gives examples of Congressmen who saw the Force Bill in these terms.
Table 6. Comments on nullification.
Congressman Party State Comment
Rives Democrat VA “The government would be thenceforward
virtually dissolved, and we should inevitably
fall back into the anarchy and confusion of the
Articles of Confederation.”
154

Webster National
Republican
MA “Nullification, if successful, arrests the power
of the law…Is not this anarchy?”
155

Grundy Democrat TN “If this right [to secession] exists…the value
and permanency of this government and this
Union are visionary and unsubstantial.”
156

Isacks Democrat TN “Ours is emphatically a government of laws;
and if the laws do not prevail, the government
cannot last.”
157

152
Howe, 407.

153
Senator John Forsyth, 22
nd
Congress, 2
nd
Session. Register of Debates, 594.

154
Senator William C. Rives, 22
nd
Congress, 2
nd
Session. Register of Debates, 493-494.

155
Senator Daniel Webster, 22
nd
Congress, 2
nd
Session. Register of Debates, 560.

156
Senator Felix Grundy, 22
nd
Congress, 2
nd
Session. Register of Debates, 671.

64
Table 6, Continued.
Clayton Democrat GA “These political heresies and rebellious
proceedings strike at the vitals of our
Constitution, and which, if tolerated, will
destroy the efficiency of our federal
government for all time to come.”
158

While many Democrats and National Republicans alike saw the issue in terms of
the rule of law, the former were much likelier to acknowledge sectional allegiances and
opposition to the American system. However, they claimed that these declarations would
not stand in the way of voting for the Force Bill. For instance, Representative Blair, a
Democrat from South Carolina felt it was his responsibility to vote for the Force Bill
because he was first and foremost, a representative of the American people. Blair’s
speech is heroic. A South Carolinian standing up to nullification, he all but assured his
own defeat at the polls. Blair even acknowledged this, “I have come to the conclusion,
some time since, that it is my bounden duty to vote for this bill, and I shall not shrink
from the responsibility of doing so, be the consequences to myself what they may.”
159

Senator Rives of Virginia also addressed his Southern roots, saying that it was his
“misfortune” to disagree with “other honorable Senators coming from the same quarter of
the Union.” He pointed out that “no one is or has been more thoroughly opposed to…the
American System.”
160
Tennessee Democrat Felix Grundy agreed: “It is not whether the

157
Representative Jacob C. Isacks, 22
nd
Congress, 2
nd
Session. Register of Debates, 1854.

158
Senator John Clayton, 22
nd
Congress, 2
nd
Session. Register of Debates, 1857.

159
Representative James Blair, 22
nd
Congress, 2
nd
Session. Register of Debates, 1856.

160
Rives, 493-494.

65
tariff laws are unjust and oppressive. If that were the subject in controversy, I would
unite my voice with theirs in their denunciations against them.”
161

Soon after the enactment of the Compromise Tariff and the Force Bill, South
Carolina rescinded its nullification of the 1832 rates. Never to out-bravadoed, she also
declared the Force Bill null and void within her borders. Although egos were bruised and
South Carolinian ostracism was exacerbated, the Nullification Crisis ended rather
peacefully. The main reason was that nullification was such an extreme move on the part
of the Palmetto State. While Democrats—especially those from the South—were apt to
call upon states rights, South Carolina took it too far. The sheer fanaticism of
nullification should disqualify it from testing Democratic adherence to limited
government. Indeed, not a single Southern legislature backed South Carolina.
162
And
yet, it the midst of such radical beliefs, Democrats simultaneously fought against
anarchy, while still maintaining their core beliefs of states rights. Congressman Clayton
put it best when he denounced those who assailed Jackson’s proclamation as “the ‘besom
of destruction’ to state rights.” While still committed to states rights and limited
government, Jackson had penned “a noble piece of composition…[meant for] the
preservation of the Union…It has blasted nullification like lightning from heaven.”
163

Bank
Any discussion of Jacksonian commitment to limited government needs to
include some mention of the Bank of the United States (BUS). Of course, Jackson

161
Grundy, 662.

162
Wilentz, 384.

163
Clayton, 1861.

66
himself was adamantly opposed to the institution, not only vetoing its recharter, but going
so far as to try to kill it before the original charter expired. These actions alone would
lead one to believe that the Bank might be the ultimate example of the Democratic
struggle to constrict governmental powers. On the other hand, there are reasons to
believe that the Bank battles were not typical of the Jacksonian experience. Although
Jackson fought to destroy the BUS, the issue does not really surface again in antebellum
America. Perhaps it is because Old Hickory did such a good job killing it off. Perhaps it
is because it was such a personal issue to the first president of the regime. Maybe it was
a political struggle that lasted only a year—a relative blip on the screen. In terms of the
analysis here, at best, the fight over the BUS represents the Democrats most important
contest in limiting the general government. At worst, it is an outlier, an issue that had
underlying motives and that do not speak to Jacksonian Constitutional commitments.
Either way, the issue needs to be discussed.
The Bank was not an issue in 1828. With eight years left on its original charter,
National Republicans had no reason to bring it up. Democrats, although ostensibly
opposed to the BUS, did not want to address it in fear of possibly splitting their coalition.
They had also found their winning issues in Indian removal, the corrupt bargain, and the
Tariff of Abominations. Daniel Walker Howe writes, “Many leading Democrats in both
the executive and legislative branches wanted the government to avoid a confrontation
with [the BUS].” It was such a non-issue that Nicholas Biddle, president of the BUS (and

67
perhaps the man Andrew Jackson hated most in US politics), had voted for Old Hickory
in 1828.
164

The actual “Bank wars” started in 1832, when a group of National Republican
Senators forced Jackson’s hand. Led by Henry Clay, the National Republicans pressured
Biddle into requesting a recharter of the Bank, even though it still had four years left on
its original term. Clay believed that the Bank was a winning political issue for his party.
If rechartered, the BUS would provide the National Republican presidential candidate
with something popular to campaign with. Moreover, Clay thought it put the sitting
president in a bind. Knowing that the recharter would comfortably pass through
Congress, Clay wanted Jackson to face the decision whether or not to sign the bill. If he
signed it, he would lose much of his populist credibility. If he vetoed it, he would be
striking down what was perceived as a popular institution, as well as one sanctioned by
the Supreme Court in McCulloch v. Maryland. The National Republicans couldn’t lose.
The 1832 fight over the Bank of the United States was initiated without policy
implications in mind. In fact, it had nothing to do with policy; it was about winning
elections.
As Clay predicted, Congress rechartered the Bank. In the Senate, it passed 28-20.
Democrats voted against it 18-6; National Republicans voted 22-0 in favor.
165
The House
vote is recorded as 107-85. There was no roll call on the actual bill. However,
immediately before voting on the bill, the House voted on whether or not to read the bill.

164
Howe, 375-377.

165
Two votes from the Nullifier Party in South Carolina voted against rechartering the Bank.

68
That motion passed 106-84. The similarities between the tallies might indicate that
Representatives who voted to have the bill read also likely voted for rechartering.
Democrats voted 82-27 against reading the bill. Of the 27, more than half hailed from
Pennsylvania, where the BUS was located. (In fact, the Bank’s official name was the
Bank of Pennsylvania.) All 78 National Republicans in the House voted unanimously to
recharter the Bank.
166
Partisanship seemed to trump sectionalism in this vote.
Table 7. Vote on National Bank.
Senate House
Group Yea Nay Yea Nay
Northern Democrats 4 5 19 (14 from PA) 33
Southern Democrats 2 13 8 49
TOTAL 6 18 27 82
Northern Nat.
Republicans
15 0 56 0
Southern Nat.
Republicans
7 0 22 0
TOTAL 22 0 78 0

Perhaps most surprising, Democratic opposition on the floor of Congress was not
as heated as in other issues, like Indian affairs or the tariff. Granted, not that many
Democrats got the chance to speak; National Republicans largely dominated the debate.
The main concern of Democrats seemed to be the unnecessary nature of the bill. Thomas
Benton stated that the Bank still had four years left on its original charter, as well as an
extra two years to finish up its affairs. “The decision of this question,” Benton told the
Senate, “does not belong to this Congress.”
167
Isaac Hill agreed, “When the elections of
those composing the present Congress took place, there was no expectation by the people

166
South Carolinian Nullifiers voted against the BUS 2-1.

167
Senator Thomas Hart Benton, 22
nd
Congress, 2
nd
Session. Register of Debates, 967.

69
that this Congress would act on this subject.”
168
Of course, a few Democrats made some
scathing comments regarding the expediency of the Bank. Willie Mangum said that the
Bank would destroy the right of smaller banks to set their own interest rates.
169
Hugh
Lawson White said that the expiration of the Bank would cause no problem whatsoever,
and that to continue the BUS would open the “power of the Bank…to political
purposes.”
170
Finally, future Supreme Court Justice James Wayne simply called the Bank
“monstrous.”
171

Through the Congressional stages, Clay’s plan worked as planned. The bill had
passed fairly easily, and Andrew Jackson had 10 days to decide whether or not to veto the
extension. Martin Van Buren advised Jackson not to veto the bill. The Cabinet was split
as well. Never one to back away from a fight, Old Hickory vetoed it. Despite the
Supreme Court’s stamp of approval, Jackson declared that the Bank was unconstitutional,
an institution only created through the gross mis-interpretation of the Necessary & Proper
Clause. He believed that as president, and therefore coequal branch of government, he
had the right and duty to interpret the Constitution as he saw fit.
172
The main reason
Jackson vetoed the rechartering was that he believed the Bank was geared towards filling
the pockets of the few at the expense of the many. “They many millions which this act
proposes to bestow on the stockholders of the existing bank must come directly or

168
Senator Isaac Hill, 22
nd
Congress, 2
nd
Session. Register of Debates, 1056.

169
Senator William P. Mangum, 22
nd
Congress, 2
nd
Session. Register of Debates, 1030.

170
Senator Hugh Lawson White, 22
nd
Congress, 2
nd
Session. Register of Debates, 1049.

171
Representative James M. Wayne, 22
nd
Congress, 2
nd
Session. Register of Debates, 3841.

172
See Whittington, Political Foundations of Judicial Supremacy

70
indirectly out of the earnings of the American people,” he declared. All told, it was not
“consistent with the rights of the states or the liberties of the people.”
173

The story did not end there. Clay’s gambit failed and Jackson returned to the
White House with a convincing victory. Fresh off a one-issue election, the president was
determined to take down the institution that delivered him a second term. Now, the Bank
was a powerful institution. It took care of almost all foreign exchange transactions, made
commercial loans, had the power to expand & contract the money supply, monitored state
banks’s reserves, held the federal government’s deposits, made interstate transfers, and
dealt with all federal payments and receipts. In 1830, it made 15-20% of all loans in the
United States. It had issued more than 40% of all bank notes in circulation. Sean
Wilentz remarks, “Biddle and his bank could regulate the entire economy.”
174
To be
sure, the BUS was powerful. Wilentz argues that Jackson had reason to fear the Bank.
“Possessing the government deposits, the BUS could easily flood the country with bank
notes, only squeeze credit prior to the 1836 election and trigger a panic that would help
elect pro-BUS men who would reverse Jackson’s veto.”
175
The solution? Jackson would
remove the deposits from the Bank. Treasury Secretary William Duane’s refusal to take
action proved a minor hindrance—he was quickly fired and replaced with Roger B.
Taney, a fervent anti-BUS Jacksonian who gladly stripped the Bank of its deposits.
Using the Bank wars to demonstrate Democratic adherence to limited government
and states rights is tricky because there were other factors at play. For starters, the whole

173
Andrew Jackson, “Veto Message on Bank” The American Presidency Project 10 July 1832.

174
Howe, 374; and Wilentz, 365.

175
Wilentz, 393.

71
issue was strategically planned around winning elections. At every turn, political
calculations came into play. In passing the bill, Clay wanted to put Jackson in a no-win
situation. In vetoing the bill, Jackson had to first consider whether he would gain or lose
allies. Jackson’s whole impetus for removing the deposits could have been his attempt to
avoid a Democratic catastrophe in 1836. Finally, in actually removing the deposits,
Jackson alienated—and even lost a few—Bank Democrats who, while agreeing with the
veto, believed he had gone too far in destroying the BUS.
176
All these moves were
predicated on whether they would strengthen or weaken one’s particular coalition. It is
not hard to argue that Constitutional doctrines might have been subservient to political
gains.
Also plausible is that the whole issue was a personal struggle driven by Old
Hickory’s sheer hatred for the Bank of the United States. Wilentz believes that “the
battle over the BUS was a personal clash between Biddle and Jackson as well as a
Constitutional struggle.”
177
Jackson did write, “Everyone that knows me does know that
I have always been opposed to the U. States Bank.” Amos Kendall, one of Jackson’s
most trusted advisors, wrote, “whoever is in favor of that Bank will be against Old
Hickory.”
178
Howe points out that Jackson “habitually referred to the Bank as ‘the
Monster.’”
179
Finally, Robert Remini comments, “The killing of the BUS was primarily

176
Wilentz, 397.

177
Wilentz, 367.

178
Quoted in Wilentz, 361-363.

179
Howe, 376.

72
the work of one man, and that man was Andrew Jackson.”
180
Could it be that one of the
most important vetoes, as well as one of the grandest displays of executive power, were
acted upon simply for personal reasons? Probably not, but many scholars seem to think
that it played a role.
Even though the fight had personal and political implications, one cannot lose
sight of the simple fact that the surface of the debate centered on Constitutional issues
such as states rights and limited government. Once Taney took out the deposits, he put
them in state banks, which surely could be interpreted a states rights move. However,
“enrichment of state banks was an effect, not a cause of the Bank war.”
181
Jackson was
not out to help state banks; he was out to destroy the National Bank. Still, isn’t that a
ringing endorsement of limited government? The veto of the rechartering was based on
strict Jeffersonian grounds that did not allow for such implied powers. And this is the
reason that the Bank must be considered a vital piece of evidence in describing
Jacksonian notions of limited government. It might not be the clearest indicator of
Democratic philosophy; but it is certainly more than just an outlier full of hidden agendas
and devoid of Constitutional propositions.
Internal Improvements
The final piece in the American System was a network of internal improvements
that would connect the states to each other. Internal improvements are probably the best
way to measure Democratic support for limited government and states rights. The

180
Robert V. Remini, Andrew Jackson and the Bank War: A Study in the Growth of Presidential Power
(New York: Norton, 1967): 43.

181
Wilentz, 394.

73
Fugitive Slave Law of 1850 just has so much baggage surrounding it. Finding an
intuitive Democratic states rights position within the issue is difficult; it requires some
unpacking. The same holds for the Bank wars. In order to see true Democratic
commitments, one has to look past all the politics and personal battles that enveloped the
BUS fights. Plus, the Fugitive Slave Law of 1850 and the National Bank issues were
one-time events. Sure, they were big issues at the time. And fugitive slaves and banks
were never really ever off the agenda during the antebellum period. But in terms of real
legislative struggles, they only appeared once. The tariff, meanwhile, was an ongoing
battle, which every Congress had to negotiate. But the tariff also had sectional
undertones. Regardless of party, all Southern politicians had a hard time defending a
protective tariff that solely benefited Northern manufacturing while also raising consumer
prices in the South.
Unlike the tariff, internal improvements were more of a partisan, rather than
sectional, issue. Like the Fugitive Slave Law and the Bank issues, there is more than
meets the eye. But the political logic of the issue is easier to follow. And perhaps most
importantly, internal improvements were fought throughout the Jacksonian regime. At
every step, Democrats tried to halt the federal government from improvements, while
also encouraging states to make their own roads and canals. The very first lines in the
very first political platforms in American history dealt with the issue. From 1840-1856,
the first three resolutions of the Democratic Platform read:
1. Resolved, That the federal government is one of limited powers, derived solely
from the constitution, and the grants of power shown therein, ought to be strictly
construed by all the departments and agents of the government, and that it is
inexpedient and dangerous to exercise doubtful constitutional powers.

74
2. Resolved, That the Constitution does not confer upon the general government
the power to commence and carry on, a general system of internal improvements.
3. Resolved, That the Constitution does not confer authority upon the federal
government, directly or indirectly, to assume the debts of the several states,
contracted for local internal improvements, or other state purposes; nor would
such assumption be just or expedient.

The fact that the Democrats chose to put these three lines at the very beginning of
their first five platforms probably indicates the intensity of opposition they felt towards
federal handling of internal improvements. Though numerous ideological and pragmatic
internal improvement battles were fought throughout the era, three of them stand out. I
consider the Buffalo & New Orleans road, the Maysville Road, and an 1846 bill dealing
with improvements. All three of these bills failed due to Democratic steadfastness to
limited government.
Buffalo & New Orleans Road
The first major internal improvements bill during Jacksonian America planned to
run a thoroughfare from New York, to Washington, D.C., to New Orleans. It would
cover 1500 miles. Debate in the House lasted weeks before the bill was defeated 88-105.
Democrat Samuel Carson declared it “a victory over a monster.”
182
Democrats voted
more than 2:1 against it; National Republicans more than 2:1 for it. Curiously, a large
number of Democrats voted for the road; 14 from the South and 26 from the North. If
opposition to internal improvements was such a vital part of Democratic philosophy, why
would they vote for a national road? More pressing, why would they fight so hard for it
on the floors of Congress? Joseph Hemphill, a Democrat (who no less introduced the

182
Representative Samuel P. Carson, 21
st
Congress, 1
st
Session. Register of Debates, 804.

75
bill!) said, “On the fate of this bill, in my humble judgment, depends a large portion of
the prosperity and glory of this country for a long time to come.”
183

Table 8. Vote on Buffalo & New Orleans Road.
Group Yea Nay
Northern Democrats 26 29
Southern Democrats 14 55
Total 40 84
Northern Nat. Republicans 39 16
Southern Nat. Republicans 9 5
Total 48 21

Though impossible to know exactly why such a large number of Democrats voted
for the bill, the fact that the road ran through the states of many of the assenters might
have something to do with it. The main route led from western New York southward
through Pennsylvania and Maryland before jutting southwestwardly through Tennessee
towards New Orleans. Of the 40 Democrats who voted for the Buffalo & New Orleans
Road, 3 came from Maryland, 5 from Tennessee, and a jarring 16 from Pennsylvania. A
few more came from other states through which the road crossed. Altogether, of the 40
atypical Democratic votes, 29 came from Congressmen who represented states through
which the road passed. Perhaps these Representatives sacrificed their party’s ideology in
this instance to acquire what they thought would be a useful means of transit.
Congressman James K. Polk certainly believed that some of his Democratic colleagues
had sold out.
Polk’s presentation to the House of Representatives concerning the Buffalo &
New Orleans should be considered one of the boldest speeches in American history.
More than arguing the merits of the bill, Polk took on its supporters. But he did not

183
Representative Joseph Hemphill, 21
st
Congress, 1
st
Session. Register of Debates, 638-655.

76
attack the National Republicans as much as he went after members of his own party who
intended to vote for the bill. He started by saying that “the road addresses itself to the
local interests…this is the evil.” By stretching the road through multiple states, “whole
masses are bought up and become advocates of this system, with the prospect of local
advantage to themselves. They look only their own local interests, and to the prospect of
having [money] disbursed in their own neighborhoods.” He challenged his colleagues: if
the road passed through other districts, instead of their own, would they be so eager to
vote for it? For Polk personally, he answered, “I shall vote against this bill, let the route
be where it may.”
Young Hickory attacked specific Congressmen, regardless of their party
affiliations. He said Alexander Smyth of Virginia was strongly against internal
improvements only 6 years earlier. He said Tennessean John Blair admitted that he
would not vote for such an expenditure if it had come from direct taxation. Polk then
asked what the difference was between a direct tax and a duty tax that the people had to
bear. “The tax collector, it is true, does not go to their doors, and demand and receive the
portion of each,” Polk said, “[but the people] pay the tax in the increased price that they
pay upon almost every article of necessity which he eats, drinks, or wears.” Finally, in
perhaps the most vitriolic section, Polk laid into Congressman Robert Craig of Virginia:
[Craig] denied the power of Congress to make roads through the states, without
the consent of the states; but, as this road passed through his district, and
addressed itself to the local interests of his constituents, he concluded to vote for
this bill, without the consent of the states. The reasons assigned for the vote were
singular enough.
184

184
Representative James K. Polk, 21
st
Congress, 1
st
Session. Register of Debates, 692-700.

77
Supporters of the road tried to present justifications for why they felt compelled to
vote for the road. Interestingly, National Republicans and Democrats took a different
approach in their respective rationalizations. National Republican Joseph Richardson of
Massachusetts saw the issue in terms of fate. He believed that the will of the majority of
American citizens “has been repeatedly and most decidedly expressed…the system of
internal improvements is destined to go forward.” He believed that the “general welfare
demanded his efforts.”
185
Fellow National Republican Dutee Pearce indicated that he felt
an obligation to vote for any measure that might benefit the Union. Despite representing
Rhode Island—a state through which the road did not pass by—he still voted in the
affirmative. “If the nation has an interest,” he questioned, “is it right to withhold my vote
and refuse this measure my support?”
186

Pearce’s was a Unionist justification, geared towards a more nationalistic view of
representation. Democratic explanations, on the other hand, tried to present a different
set of reasons for voting affirmatively. Thomas Crawford of Pennsylvania responded
directly to Polk by asking whether or not all legislation was of local operation? He
thought the future president was the one who was in the wrong. Crawford condemned
Polk as “the juryman who differed with his fellows, and, upon being brought into court,
said they were the most obstinate 11 men he had ever met with.”
187
Similarly, Blair

185
Representative Joseph Richardson, 21
st
Congress, 1
st
Session. Register of Debates, 712-716.

186
Representative Dutee Pearce, 21
st
Congress, 1
st
Session. Register of Debates, 768.

187
Representative Thomas H. Crawford, 21
st
Congress, 1
st
Session. Register of Debates, 707.

78
explained, “I was educated in that school in which the doctrines were considered
orthodox, that the representative is bound to obey the will of his constituents.”
188

The difference between Richardson & Pearce on one hand, and Crawford & Blair
on the other is remarkable. The former pair applies a justification that would allow them
to vote for any internal improvement. Indeed, the Buffalo and New Orleans Road would
not have even passed through their homes states. But Richardson voted for it because the
national majority called upon him to do so; Pearce voted for it because he believed it was
the right thing to do for the country. The Democrats, meanwhile, seemed to frame the
issue in terms of why they feel they can vote for this particular bill. Simply put, it
benefitted their constituents. Crawford and Blair did not tie themselves to internal
improvements in general. They did not say that they must vote for every bill that they
think will help the Union or that a national majority wants. Instead, the two Jacksonians
felt that this specific road was worth building. I doubt that they would have voted for
another one that went through Rhode Island and Massachusetts, for that would not have
benefited their home states. It is important to recognize these differences because even
the reasoning behind Democratic allowance federal exertion of power is couched in
localism.
While a good number of Democrats might have voted for the road because it went
through their districts, they also could have voted for it because it was the best option
available. Over the years, the protective tariff had built up a considerable surplus in the
US Treasury. Jackson meant to use the receipts to pay off the national debt, but the

188
Blair, 656.

79
National Republicans wanted it spent on internal improvements. Some Congressional
Democrats agreed with Jackson. During the debate on the Buffalo & New Orleans Road,
Carson inquired, “Is not every dollar which we appropriate beyond the current expenses
of the year, so much of the money which should otherwise go to the payment of the debt
of the nation?”
189
Other Democrats, however, felt that the National Republicans would
never let the money be appropriated to fully pay off the debt in a timely fashion.
Moreover, these Democrats thought that the National Republicans would find a way to
implement the American System. If Clay’s beloved program was truly unstoppable, they
reasoned, their home states might as well reap the benefits. Moreover, Democratic
Representatives from the South felt especially entitled to the money since Dixie did not
profit in any manner from the tariff.
Craig (one of the Congressmen derided by Polk) lamented that “whether this bill
pass or not, internal improvements will be carried on under this government.” He
explained that he steadfastly stood against the protectionist system, but found himself in
the minority when voting on the tariff. “I cannot see, in justice, in reason, in conscience,
why the people whom I represent, as they bear their share of its burdens, should not have
their share of its profits,” Craig expressed.
190
Jacob Isacks came to the same conclusion,
asking, “What has been the revenue of the government during the last 14 years? By
whom has it been paid?”
191
Thomas Irwin deplored the inevitability of the “drain of our
currency.” But he said Congress could “in a great degree, mitigate its effects, by giving

189
Carson, 669-674.

190
Representative Robert Craig, 21
st
Congress, 1
st
Session. Register of Debates, 674-678.

191
Representative Jacob C. Isacks, 21
st
Congress, 1
st
Session. Register of Debates, 661-665.

80
to our people cheap and easy means of transporting their produce and stock to market.”
192

Finally, Blair of Tennessee (another Polk victim) seemed exasperated. He denounced the
“gentlemen’s splendid sea wall” and “the paraphernalia of seaboard extravagance,” but
he saw no other means for disposing of the income. He frustratingly asked, “What are we
to do with that [revenue] which has accrued, and will hereafter arise, under the present
tariff?”
Two other discussions regarding the road took place on the floor of the House of
Representatives. The first involved the expediency of the road. Almost every dissenting
Democrats was quick to point out the road would bring with it postal, military, and
commercial advantages.
193
“The usefulness which the contemplated road will be to the
country, is of itself exceedingly important,” Hemphill noted. Carson denied the utility of
the route, “There is no necessity which demands at our hands the application of the public
funds for purposes of this kind. Neither the ‘common defense,’ nor the ‘general welfare,’
demands it.” He claimed that commercial, postal, and military ventures would not
benefit from the road. He even went so far as to say that it would have not political or
unifying effect on the country.
194
New Yorker William Angel simply stated, “There is no

192
Representative Thomas Irwin, 21
st
Congress, 1
st
Session. Register of Debates, 723.

193
For example, see Blair 656-661; Isacks, 661-665; Representative William Ramsey, 21
st
Congress, 1
st

Session. Register of Debates, 679; and Representative James I. Standifer, 21
st
Congress, 1
st
Session.
Register of Debates, 709-711.

194
Carson, 669-774.

81
beneficial purpose for which this road can be used; it will be lasting monument of a
nation’s folly.”
195

The other discussion was more of a Democratic apprehension regarding who
would operate the road once it was built. Adhering faithfully to states rights, Democrats
believed that the control of the road should be turned over to the states wherein the roads
lay. Even Craig was somewhat fearful about the federal government controlling the
thoroughfare. He said, “The danger consists in the retention of jurisdiction over theses
works after they are made.”
196
Angel wanted to know what would “become of the road
after it is made.” He dismissed federal toll gates as unconstitutional and infringing on
state sovereignty. On the other hand, without tolls, they would have to rely on the states
to maintain the road, which also violated state sovereignty.
197
Congressman Lea also
observed that the bill “neither makes any provision for the preservation of the road, after
it shall have been made, nor gives us any intimation of the mode that is to be hereafter
resorted to for that purpose.”
198
One of greatest sources of concern for Democrats was
how the road implied the interjection of the federal government into the states. This
directly butted up against the core values of the regime.
Most Democrats feared the construction of the Buffalo & New Orleans Road
because it symbolized an activist federal government going beyond its enumerated
powers. Those Jacksonians who voted against it were quite mindful of the implications

195
Representative William G. Angel, 21
st
Congress, 1
st
Session. Register of Debates, 730-731.

196
Craig, 674-678.

197
Angel 730-731.

198
Representative Pryor Lea, 21
st
Congress, 1
st
Session. Register of Debates, 776.

82
of legislating these types of internal improvements. Henry Hubbard could not understand
why states did not adhere to his New Hampshire’s plan of internally raising money for
intrastate roads.
199
Lea though it was “the most direct and daring attempt on state
jurisdiction and authority that was ever before a Congress of this Union.”
200
And despite
Polk’s condemnation of localist Jacksonians, at least a few Congressmen with a direct
stake in the issue voted against the measure. Muhlenberg of Pennsylvania voted against
the road because “ he considered himself a representative of the whole, and not for a part
only.” He explained, “I regret it because it is apparently against the immediate interest of
a considerable portion of my native state.”
201
Lea appeared less apologetic: “I find
myself the only member of this floor from several hundred miles of distance along the
contemplated route of this road who refuses to take this dose of poison…I will not vote
for this bill.”
202
Finally, Congressman Angel expressed outrage, demanding that if the
bill pass, Buffalo’s name be taken off the legislation and the road start in Pennsylvania.
“This amendment would exclude New York from the bill and from its contamination,” he
asserted, “We ask not, nor do we need, your aid in the construction of our roads and
canals.” Summing up his faithfulness to the Democracy’s goals of states rights and

199
Representative Henry Hubbard, 21
st
Congress, 1
st
Session. Register of Debates, 763.

200
Lea, 776.

201
Representative Henry A.P. Muhlenberg, 21
st
Congress, 1
st
Session. Register of Debates, 787.

202
Lea, 776.

83
limited government, Angel proclaimed, “I will not prostitute my vote to the surrendering
of the rights of the state.”
203

Maysville Road
Shortly after defeating the Buffalo & New Orleans Road, Democrats faced
another National Republican internal improvement project. The Maysville Road was to
be constructed entirely within the borders of Kentucky, connecting Maysville to
Lexington, a distance of about 65 miles. It requested federal financing—not
construction—of the road. National Republicans believed that the road was a federal
issue because they assumed that it would one day be a vital part of the national highway
system. Ultimately, it would make a connection with the Cumberland Road—or, as
National Republicans liked to call it, the National Road—in Ohio, as well as meeting up
with the Tennessee River near the Tennessee & Alabama border. Since the Maysville
Road would eventually be linked with other inter-state roads, proponents of the bill
believed that it was national in scope.
204
Representative Robert Letcher stated, “These
two connections most certainly and justly entitle it to the appellation of a national
work…There is no intention to induce the House to subscribe to a mere neighborhood
road.” Not surprisingly, Letcher was a Henry-Clay National Republican from Kentucky.
Unfortunately for the Congressman, many of his colleagues saw the issue
differently. In fact, this was the major problem raised by Democrats in the House
debates; they did not believe in the national extent of the project. Unsurprisingly, they

203
Angel, 730-732.

204
Carlton Jackson, Presidential Vetoes: 1792-1945 (Athens, GA: University of Georgia Press, 1967): 15.

84
believed that the road was a local measure, a worthy endeavor so long as the Bluegrass
State herself pursued it. But Congress had no jurisdiction. George Foster asked, “What
are the evidences of its nationality?…If these are the characteristics of a national road,
our country abounds with them.”
205
Continuing his passionate opposition to internal
improvements, James K. Polk said, “Every foot of the road lies within the interior of
Kentucky…What, sir, a road 60 miles long, in the interior of one of the states, a national
object, indispensable to enable the government to carry on its operations in peace, or for
defense in war! Does anyone so contend?” And once again, Polk accused a
Congressman with trying to unabashedly bring home the pork: “Strange as it may seem,
it has been so contended by a gentleman from Kentucky, those whose district it is to
pass.”
206

Democrats felt that if the Maysville Road was deemed a national project, things
would spiral out of control and the American System would have its run of the country.
To a party concerned with limited government, this prospect was unacceptable. Foster
said Maysville “will only be the commencement of a system which promises to have no
end.” He thought appropriation requests would floor the House.
207
Starling Tucker of
South Carolina believed “all such appropriations, besides being unjust and
unconstitutional, were pregnant with the most disastrous consequences.”
208
Polk

205
Representative Thomas Foster, 21
st
Congress, 1
st
Session. Register of Debates, 820.

206
Polk, 831-832.

207
Foster, 820.

208
Representative Starling Tucker, 21
st
Congress, 1
st
Session. Register of Debates, 842.

85
articulated the slippery slope that the National Republicans laid down. He explained,
“Anything is national that gentlemen think proper to deem expedient. A road from a
neighborhood tavern to a neighborhood mill…from one courthouse to another, in
Kentucky or in any other state, could be equally national.” Polk said the American
System survives because its proponents threaten legislators to vote for all internal
improvements, lest they lose their own pet projects. “The combination is complete,” Polk
said, “and this is what you call a system.”
209

In this instance, the system prevailed, and Congress passed the Maysville Road.
The bill arrived at the White House, waiting for presidential approval. Wilentz says that
“Jackson was torn.” Some of Jackson’s most ardent allies—like Amos Kendall and
Thomas Hart Benton—wanted to provide funding for the road.
210
However, I believe it
was a pretty easy decision for Jackson. I think he unhesitatingly vetoed the bill. His veto
message carries a definite conviction, depicted by his reference to his 1829 State of the
Union, where he had told Congress that extinguishing the national debt was more
important than internal improvements. Carlton Jackson writes, “[President Jackson]
intimated strongly that the lawmakers knew better than to present him with the Maysville
proposal.”
211
Since the country’s checkbook was still in the red, Old Hickory saw no
reason to engage in building roads. Moreover, once those debts were paid down, he
believed that a “serious deliberation” of Congress was necessary to discuss lowering the

209
Polk, 831-832.

210
See Wilentz, 328.

211
Carlton Jackson, 16-17.

86
tariff.
212
Like many of his Legislative colleagues, Jackson also questioned the national
interest in a one-state road: “I am not able to view it in any other light than as a measure
of purely local character… It has no connection with any established system of
improvements [and] is exclusively within the limits of a state.” Lastly, the veto message
challenged the federal government’s authority to finance internal improvements. He
hinted that before he could sign on to such legislation, “a previous amendment of the
Constitution, delegating the necessary power and defining and restricting its exercise with
reference to the sovereignty of the states, should be made.”
213
Only a complete, explicit
change of the Constitution would allow the Democrat to override his commitment to
limited government!
After Jackson’s response, the House took up the issue again to see if they could
muster the two-thirds necessary to override the veto. Since the original bill had passed by
a 102-86 margin, there was not much chance of overcoming the presidential veto. In
reality, the reconsideration of the bill really seemed to be an opportunity to praise
Jackson. Henry Daniel of Kentucky had originally supported the Maysville Road, but
proclaimed the veto to be “the first time in the history of the world, that the executive of a
nation has interposed his authority to stop extravagant and ruinous appropriations.”
214

Future Supreme Court Justice Philip P. Barbour extolled Old Hickory as having “the

212
Andrew Jackson, “1829 State of the Union”; and Andrew Jackson, “Veto Message of Maysville Road”
The American Presidency Project (27 May 1830).

213
Andrew Jackson “Veto Message on Maysville Road.”

214
Representative Henry Daniel, 21
st
Congress, 1
st
Session. Register of Debates, 1138.

87
moral courage, the ardent patriotism, and lofty disinterestedness…in doing his duty.”
215

Polk joined in praising the president: “He had planted himself upon the ramparts of the
Constitution, and had taken the high responsibility upon himself to check the downward
march in which the system of which this bill is a part was fast hastening us. It required
just such a man, in such times, to restore the Constitution to its original reading.”
216

There is no record to see how each individual Representative voted in the 102-86
ballot.
217
During reconsideration, a tally was taken, 96-90, looking remarkably similar to
the original vote. Although a reconsideration vote after a veto might imply something
different than the first vote, it still might give us insight into partisan preferences. As
with the Buffalo & New Orleans Road, this bill split the parties. Democrats voted against
it 83-36—more than 2:1. National Republicans voted for it more than 6:1. Once more,
when contextualized, the Democratic margin against the bill is even more dramatic. For
starters, 10 Pennsylvanians and 6 Ohioans voted against traditional Jacksonian
preferences. It is likely this had to due with the promise that the turnpike would meet up
with the Cumberland Road, which passed through both states. In addition, 7 Kentucky
Democrats voted for the Maysville Road, their reasoning seeming obvious enough.
Perhaps it is worth noting that 4 Kentucky Representatives and 2 Ohio Representatives

215
Representative Philip J. Barbour, 21
st
Congress, 1
st
Session. Register of Debates, 1143.

216
Polk, 1142.

217
The Senate also passed it, but failed to register the tally. The Senate clerk did not even have the full
debate. Only John Tyler’s speech was printed. In terms of the vote, the Register of Debates merely reads,
“The bill, as it is known, passed the Senate.” (435)

88
voted against the Buffalo & New Orleans Road, but later voted for the Maysville Road.
218

Other than pork barreling, why else would these legislators show such an inconsistency?
Though there were localist interests and slight sectional preferences, the partisan
preferences—especially when given a nuanced account—are overwhelming. The main
reason behind these preferences has to do with beliefs in limited government.
Table 9. Vote on Maysville Road.
Group Yea Nay
Northern Democrats 19 33
Southern Democrats 17 50
Total 36 83
Northern Nat. Republicans 48 6
Southern Nat. Republicans 13 3
Total 61 9
TOTAL 97 91

1846 Bill
In the 1844 elections, the Democrats took back control of the federal government
from the Whigs. Created by the common dislike for Andrew Jackson, the Whigs did not
fare well in their round of governance. When James K. Polk took the presidential oath in
1845, the Democrats seemed poised to return to the early glory years of the Jackson
administration. They held majorities in both the House and Senate. In the White House
sat a president capable of achieving major policy goals. And the opposition seemed
smashed. Stephen Skowronek writes, “The nation was poised to leap ahead along the

218
Using this logic the other way around (i.e., looking to see if Buffalo & New Orleans supporters who
appeared to have a localist bent ended up voting for the Maysville Road) does not work as well. In the
Maysville vote, the Buffalo & New Orleans supporters would have consciousness of needing to be
consistent. On the other hand, looking at affirmative Congressional votes after a negative vote has been
cast provides strong evidence that a Congressman is against the issue, but for it when it helps his own
district.

89
path chartered by Andrew Jackson.”
219
To be sure, the Polk administration and the 29
th

& 30
th
Congresses accomplished many policy goals. He added Texas, resolved the long-
standing Oregon border dispute, acquired the Mexican Cession after the Mexican-
American War—all the while still pursuing Jacksonian domestic issues.
220
In terms of
internal improvements, the story so far would make it seem unconventional for a
Democratically-controlled Legislature to even take up the issue. Yet they did, even
passing a fairly extensive plan in 1846, appropriating $1.4 million to 40 separate projects.
And while passage would not have been possible without Democratic support, it certainly
was not a bipartisan effort. At the beginning of the debates, Representative McConnell
“made a few remarks, which gave rise to much merriment; but such was the uproar in the
hall, that much of what he said was lost at the reporter’s desk.”
221
The story behind the
legislative ruckus gives us insight into Jacksonian views on limited government in the
heyday of the regime.
With the extinction of the National Republican Party, Henry Clay took his
American System to the Whigs. After the John Tyler fiasco, the only thing holding the
Whig Party together in the mid 1840s was a commitment to Union, largely symbolized
by a desire to implement a national highway system. Their main argument against the
Democrats in 1846 turned on the Constitutionality of such a system. Whig supporters
abounded. E.H. Ewing said that “under a distinct declaration in the Constitution,” the

219
Skowronek, 155.

220
Skowronek, 155-176.

221
Representative Felix G. McConnell, 29
th
Congress, 1
st
Session. Congressional Globe, 420.

90
government had the power to engage in a system of internal improvements.
222
Meredith
Gentry “entertained no doubt whatever of the existence in this government of the power
to make internal improvements.” In fact, he could not even conceive of a government
that was divested of the power, “its very nature inherent in the government.”
223
Benjamin
Thompson appealed to the commerce clause.
224
Samuel Vinton agreed, and added that
“he was equally satisfied that this House had the power to make all such improvements as
were necessary for the defense of the country.”
225

Interestingly, a few Democrats joined the Whigs in arguing the Constitutionality
of the bill. Important to note, however, was that their reasoning was much different than
that of the opposition party. The Whigs made their case in terms of a national system of
internal improvements. They were quick to point out all the clauses in the Constitution
that allowed for the entirety of American System. On the other hand, Democratic claims
of legality centered specifically on Washington’s right to improve harbors that serviced
either naval ships or others engaged in international trade. Almost every Democrat who
spoke on the issue made sure to say the bill was about rivers and harbors. This was not a
new conception of limited government. In fact, even Andrew Jackson believed that the
federal government could make such improvements.
226
Democrat James Faran tried to
convince his partisan colleagues that the bill only dealt with rivers and harbors.

222
Representative E.H. Ewing, 29
th
Congress, 1
st
Session. Congressional Globe, 506.

223
Representative Meredith P. Gentry, 29
th
Congress, 1
st
Session. Congressional Globe, 485.

224
See Representative Benjamin Thompson, 29
th
Congress, 1
st
Session. Congressional Globe, 496.

225
Representative Samuel F. Vinton, 29
th
Congress, 1
st
Session. Congressional Globe, 496.

226
See Wilentz, 868, (footnote 38).

91
Congressman Robert McClelland said that constructing harbors, lighthouses, and
fortifications along the water were “necessary to the military defenses of the country.”
227

Albert Constable pointed out that “improvement of the navigable waters of the country”
fell within Congressional authorization to “regulate commerce with foreign nations and
among the several states.”
228
All these speeches referenced bodies of water and were
qualitatively different than Whig justifications.
Not all Democrats were convinced. Some relied on the safer notion that the
government should be out of the improvement business altogether. R. Barnwell Rhett
said that he did not object to any parts of the bill, just that it wasn’t allowed under the
Constitution.
229
Stephen Adams “took a general view of the Constitutional question,
denying utterly the power of Congress to make any of these improvements.”
230
George
Jones said “there was not a solitary provision in the bill now under consideration which
was authorized by the Constitution.” Thomas Bayly worked Jones’s logic in the reverse
direction, “This government was one of delegated powers…Understanding the
Constitution in this way, he had looked through its provisions in vain for a solitary one
that could sanction this system of internal improvements by the general government.”
231

William Brockenbrough “denied the Constitutionality of this measure.”
232
Joseph

227
Representative Robert McClelland, 29
th
Congress, 1
st
Session. Congressional Globe, 437-438.

228
Representative Albert Constable, 29
th
Congress, 1
st
Session. Congressional Globe, 492.

229
Representative R. Barnwell Rhett, 29
th
Congress, 1
st
Session. Congressional Globe, 438.

230
Representative Stephen Adams, 29
th
Congress, 1
st
Session. Congressional Globe, 497.

231
Representative Thomas Bayly, 29
th
Congress, 1
st
Session. Congressional Globe, 499.

232
Representative William H. Brockenbrough, 29
th
Congress, 1
st
Session. Congressional Globe, 508.

92
Woodward found a lack of Congressional authority in the issue. To be sure, a lot of
Democrats disagreed with the Whigs.
They also did not agree on the usefulness of the proposed improvements. Andrew
Johnson proposed an amendment to test the sincerity of the bill’s supporters. He wanted
them to include extensive improvements in Tennessee, not a state Whigs found much
support in. Johnson reasoned that if the government could make improvements, it should
do so everywhere, like in Tennessee. He then closed his speech, “If the floodgates were
once hoisted, bankruptcy, indebtedness, and all the catastrophes which come in the train
of such measures, would ensue.”
233
Jefferson Davis made the Polkian accusation that the
bill had nothing to do with national defense; it was “but for the promotion of the interests
of the particular points at which they were located.”
234
Brockenbrough denied “its
expediency in every part and particular.”
235
Woodward said the American system was
“abandoned…for its inexpediency.”
236
Howell Cobb “dwelt at much length upon the
evils which the revival of a general system of internal improvements would entail.”
237

William Payne called it “a legislative monster.”
238
McConnell declared it “a flagrant and
stupendous outrage.”
239

233
Representative Andrew Johnson, 29
th
Congress, 1
st
Session. Congressional Globe, 472.

234
Representative Jefferson Davis, 29
th
Congress, 1
st
Session. Congressional Globe, 508.

235
Brockenbrough, 508.

236
Representative Joseph Woodward, 29
th
Congress, 1
st
Session. Congressional Globe, 516.

237
Representative Howell Cobb, 29
th
Congress, 1
st
Session. Congressional Globe, 486.

238
Representative William W. Payne, 29
th
Congress, 1
st
Session. Congressional Globe, 428.

239
McConnell, 420.

93
The breakdown of the votes in the House did not showcase the same level of
partisanship as in the previous two bills. Whig support was characteristically high (63-8).
Democrats still voted largely against it, but the 82-46 ratio is smaller than in previous roll
calls. While Southern Democrats mostly held the party line, a lot of Northern Democrats
defected. In fact, more Northern Democrats voted for the bill than against it. Opposition
to internal improvements did somewhat wane in the party in 1846. Congressman Ewing
(a Whig) remarked on the division, speaking “of the construction of the Democratic
Party, and of the discordant views of the several wings or sections of that party.”
240

Table 10. Vote on 1846 Bill.
Group Yea Nay
Northern Democrats 38 28
Southern Democrats 8 54
Total 46 82
Northern Whigs 53 0
Southern Whigs 10 8
Total 63 8
TOTAL 109 90

Any doubt that Polk had not earned the nickname Young Hickory was put to rest
with his veto of the 1846 bill. His veto message echoed much of what Jackson had
written in response to the passage of the Maysville Road. The response indicates that
support for states rights and limited government still had a powerful voice in the
Jacksonian coalition. Of course, Polk’s main justification for vetoing the measure was
that it could not be reconciled with the Constitution, which did not “confer upon the
federal government the power to construct works of internal improvement within the
states.” The declaration still fit within the Democratic allowance for improvements of

240
Ewing, 507.

94
harbors and rivers, despite denying these particular funds. Polk said that Congress had
previously exercised the right of building lighthouses, beacons, buoys, piers, and other
improvements necessary for safe shipping and naval operations. He even noted that all
preceding administrations had consented to such expenditures, and that he was “not
disposed to question or disturb the authority.” However, the rivers and harbors in this bill
were not characteristic of previous projects. Polk determined that these rivers did not
receive foreign commerce; and “Though in the language of the bill they are called
harbors, they are not connected with foreign commerce, nor are they places of refuge or
shelter for our Navy.”
He was concerned that allowing Washington to appropriate money for these rivers
and harbors would open the pecuniary floodgates to other “bays, inlets, and creates,
which may with equal propriety be called harbors,” as well as “all the rivers, important or
unimportant.” The veto message was quite concerned with the precedent this bill would
establish. Polk wrote:
To sanction the bill with such provisions would be to concede the principle that
the Federal Government possesses the power to expend the public money in a
general system of internal improvements, limited in its extent only by the ever-
varying discretion of successive Congresses and successive Executives. It would
be to efface and remove the limitations and restrictions of power, which the
Constitution has wisely provided to limit the authority and action of the Federal
Government to a few well-defined and specified objects. (emphasis in original)

But like Jackson, Polk did give the opposition a proposed (albeit, unrealistic) route for
implementing the American System. He made it clear that such a network could
rightfully be established after amending the Constitution.

95
Like his Congressional counterparts, Polk not only believed the improvements
were unconstitutional, but they were also inexpedient. Referencing the “practical evils”
of the bill, he said it would “benefit but few at the expense of the common Treasury of
the whole.” For Young Hickory, there simply was “no pressing necessity,” especially
when the nation was in the middle of the Mexican-American War. Polk noted the
difficulties of balancing a budget during wartime. In fact, even the debt-obsessive
Democrats had had to take out a loan to defray the costs of war. He did not see the
justice in improving 40 harbors while the public debt grew bigger. That kind of spending
“increased burdens upon the people by taxation.” Democratic commitments to limited
government simply did not call for these kinds of expenditures.
Like his speeches in the House of Representatives, Polk’s veto message accused
the bill of only benefiting certain parts of the Union. He mentioned the “local character”
of the legislation more than once, and explained that it would “only have the effect of
improving one place at the expense of the local natural advantages of another in its
vicinity.” At worst, it would lead to “a disreputable scramble for the public money” and
“engender sectional feelings and prejudices calculated to disturb the harmony of the
Union.” At best, “it would produce combinations of local and sectional interests,” which
would be strong when combined together, but always looking to leave a good number of
people out. Plus, Polk was very concerned with states rights. He worried about states
that did not subscribe to federal improvements and/or had already built their own. He
said it would be unjust to “those states whose representatives and people either deny or
doubt the existence of the power.” While those states would have to contribute to the

96
general fund, they would not receive their proportionate bounty. He was worried that one
part of the country would pay for the projects while not getting any of its benefits. In
addition, it was “unjust to those states which have with their own means constructed their
own internal improvements.”
Polk’s veto of the 1846 internal improvements bill symbolized the regime’s
commitments to states rights and limited government. It was framed in terms of a
Constitutional vision that saw the US more as a confederacy than a nation. The feds had
authority in a few, very detailed areas. The states were responsible for the rest. One
passage in Polk’s message sums up the entire Democratic philosophy:
It is not questioned that the Federal Government is one of limited powers…The
whole frame of the Federal Constitution proves that the Government which it
creates was intended to be one of limited and specified powers…To guard against
the assumption of all powers which encroach upon the reserved sovereignty of the
States, and which consequently tend to consolidation, is the duty of all the true
friends of our political system.
241

Nationalist Cases
The Supreme Court of the antebellum period closely followed Jacksonian
prescriptions for states rights and limited government. A number of high profile cases
have been touted as reversing some of John Marshall’s most important rulings on
federalism. Some other lesser-known cases were also important in establishing the two
Democratic goals. While the primary focus of the rest of this chapter dwells on these
types of cases, there were a few Taney Court decisions that seemingly do not mesh with
regime goals. Before moving on, these cases deserve some attention.

241
James K. Polk, “Veto Message on 1846 Internal Improvement Bill” The American Presidency Project 3
August 1846.

97
John Marshall’s decision in McCulloch v. Maryland might have drawn the most
ire from hard core states righters. Perhaps most noteworthy was the Court’s
interpretation of the Necessary and Proper Clause. Marshall wrote that the phrase was to
be interpreted loosely, which gave the federal government much more leeway in drawing
up legislation. Also important was deciding the real issue in the case: whether or not
Maryland could tax the National Bank. The Great Chief Justice wrote that she could not
impose such duties. A couple decades later, the Taney Court reinforced McCulloch with
its ruling in Dobbins v. Erie County. Daniel Dobbins was the captain aboard the Erie, a
ship commissioned by the US government to help enforce tariff duties. Though operating
a federal “revenue cutter,” Dobbins resided in Pennsylvania, which made Erie County
believe that “he was clearly, as such, liable to taxation.” Following that logic, Captain
Dobbins had to pay a $10.75 tax from his $500 salary. Now, Erie County recognized that
a state could not tax any institution established by the federal government designed for
the execution of its powers—McCulloch had said this much. They admitted, “[A state]
cannot tax the mail. It cannot tax the mint. It cannot tax patent rights. It cannot tax the
judicial process.” However, while “a state may not tax a bank of the United States…it
may impose a tax on the citizens of such state holding stock in such bank.” Thus,
Pennsylvania’s argument rested on the fact that it was not actually taxing the Revenue
Cutting arm of the federal government. It was only taxing Daniel Dobbins, a private
resident of the Keystone State.
Justice James Wayne delivered the Court’s unanimous decision. He explained
that state legislatures could not stand in the way of the federal government from

98
exercising its Constitutional powers. The tax, he said, had created an illegal roadblock;
“it conflicts with a law of Congress made in pursuance of the Constitution.” Moreover,
Wayne was upset that Pennsylvania had found a way to redistribute federal income to the
states without federal approval. “To allow a right of taxation to be in the states, would
also in effect be to give the states a revenue out of the revenue o the United States,” he
wrote. The Court struck down Pennsylvania’s tax; Captain Dobbins was not responsible
for the $10.75.
242
While Dobbins did add to McCulloch, its significance should not be
overstated. McCulloch dealt with the “power to destroy” the National Bank; Dobbins
dealt with a small tax on a very limited number of federal employees.
243
Even if the
ruling could be applied to all employees of the federal government (e.g., post officers,
judges, etc.), it seems unreasonable to believe that states would tax them so much that
they would be “destroyed.” In the end, the decision was a nationalist one (and therefore a
deviation from understood regime goals), but it was hardly far-reaching, and certainly not
nearly as important as McCulloch.
A few years after Dobbins v. Erie County, the Court upheld the Congressional
expansion of judicial jurisdiction in maritime cases. In the dark hours of May 6, 1847,
the steamboat Genessee Chief crashed into the Cuba, a small schooner. The Cuba had
been “damaged…so seriously that she shortly afterwards sunk, with her cargo on board.”
The owners of the schooner sued the owners of the steamboat. Counsel for the Cuba
argued that poor management of the Genessee Chief had led to the crash. They explained

242
Dobbins v. Erie County 41 U.S. 435 (1842).

243
McCulloch v. Maryland 17 U.S. 316 (1819).

99
that when two ships approach each other on a relatively narrow passageway, it is the
vessel with the wind that must give way; “A steam vessel is regarded as always having
the wind.” Additionally, counsel argued that the Cuba had tried hailing the steamboat,
but the Genessee Chief had not responded. They claimed that the Genessee Chief had
had no officer of the watch on duty and that there was no lookout. Although the
Genessee Chief alleged that the wheelsman was on lookout, the Cuba claimed that he was
asleep, and “if not, he was incapacitated by liquor.”
The Genessee Chief did not answer the merits quite as forcefully: “The
respondents deny that it was occasioned by the fault of the steamboat, and impute it to the
carelessness with which the schooner was managed.” More importantly, the Genessee
Chief attacked the accusation on jurisdictional grounds. They said that historically,
federal courts could only hear disputes where an incident occurred on the ocean, and
more specifically, on waters within the ebb and flow of the tide. Counsel for the
steamboat added tidewaters was the standard in both England and the US, at least at the
time the Constitution was adopted. The reasoning behind these limits was that interstate
and international commerce was transacted upon these waters. In 1845, though,
Congress passed a law entitled, “An act extending the jurisdiction of the district courts to
certain cases upon the lakes and navigable waters connecting the same.” Obviously, the
bill gave the federal courts an expanded jurisdiction. The Genessee Chief maintained that
the legislation was unconstitutional.
A lot of previous case law supported the Genessee Chief’s position. In the case of
the Thomas Jefferson, the Court had declared that admiralty jurisdiction extended only to

100
the ebb and flow of the tide. Orleans v. Phoebus had upheld that ruling. Waring v.
Clarke, heard only three years before Genessee Chief, had skirted the jurisdictional issue.
Waring was very similar to the case in question. It also involved a collision between two
ships along the Mississippi River. In that case, though, the Supremes had decided that
there was enough evidence demonstrating that the tide reached the point where the crash
took place. Therefore, there was no need to discuss whether or not it fell within the
Court’s jurisdiction. “But that case showed the unreasonableness of giving a construction
to the Constitution which would measure the jurisdiction of the admiralty by the tide.”
244

And although the Thomas Jefferson case had said that jurisdiction should be restricted to
the ebb and flow of the tide, the Court’s decision in Genessee Chief (written by Taney)
announced, “if we follow it, we follow an erroneous decision.” The Court also went back
to Waring v. Clarke, calling upon its “unreasonableness.” Taney explained that if they
were to use the procedure followed in Waring, they would be forced to draw a line across
every river, indicating where the tidewater ended. “The distinction would be purely
artificial and arbitrary, as well as unjust,” Taney wrote. It would effectively make the
Constitution apply to one part of a river, but not to another part just a few yards upstream.
He concluded:
The jurisdiction is here made to depend upon the navigable character of the water,
and not upon the ebb and flow of the tide. If the water was navigable it was
deemed to be public; and if public, was regarded as within the legitimate scope of
the admiralty jurisdiction conferred by the Constitution.

It is important to note three things about the ruling in the Genessee Chief case.
First, Taney’s decision called upon the Court to adapt to changing circumstances. He

244
Genessee Chief v. Fitzhugh 53 U.S. 443.

101
wrote that the conviction that the Court should regulate more waters was “growing
stronger every day with the growing commerce on the lakes and navigable rivers of the
western states.” Even though the framers (as well as the Marshall Court) might have
originally intended the Court to police the tidewaters, “the great importance of the
question as it now presents itself could not be foreseen…The [Thomas Jefferson] decision
was made in 1825, when the commerce on the rivers of the west and on the lakes was in
its infancy.”
245
This pragmatic justification might give us insight into why a Democratic
Court could produce an ostensibly nationalist ruling. By upholding the Congressional
expansion of judicial jurisdiction, the Taney Court seemed to give the feds more power.
However, maybe this was a special circumstance, tailored to the need of the federal
government in light of a rapidly developing West.
Regardless of how Taney might have personally reconciled it, Justice Peter Daniel
did not agree, and he dissented on jurisdictional grounds. He believed that the act of
Congress was unconstitutional and that the Court did not have the right to hear the case.
He confessed that his “opinions may be deemed to be contracted and antiquated, unsuited
to the day in which we live; but they are founded upon deliberate conviction as to the
nature and objects of limited government.”
246
This just adds to the notion that Taney was
implementing a realistic strategy for combating unaccounted-for problems. In this case,
“antiquated” rules needed updated.

245
Genessee Chief v. Fitzhugh (emphasis added).

246
Justice Peter Daniel’s dissent in Genessee Chief v. Fitzhugh.

102
Lastly, even though Taney increased the scope of the federal judiciary, he made
sure to point out that he was not increasing the power of the federal government via the
Commerce Clause. He spoke of the Legislature’s decision to expand the tidewaters: “The
law…contains no regulations of commerce; nor any provision in relation to shipping and
navigation of the lakes. It merely confers a new jurisdiction…this is it its only object and
purpose.” This is important because Taney upheld Jacksonian ideals of limited
government by stating that the Court did not have the right to impose its will on the
commercialism of the country. The bill might have given federal courts the right to hear
more cases, but it was not meant to persuade judges to decide cases in favor of the federal
government at the expense of the states. In addition, it seems like Taney attempted to
circumscribe what Congress could do under the Commerce Clause. He approved this
enlargement of judicial rule because the Commerce Clause did apply to waters beyond
the ebb and flow of the tide. In this particular case, Congressional regulation was
permitted; but in no way was this case a precedent to be used for enlarging the authority
of Congress via the Commerce Clause.
247
Thus, though the decision was in favor of the
feds, that conclusion needs tempered with the facts that circumstances were changing,
Daniel still dissented, and the Court expressly denied expanding Congressional authority
through the Commerce Clause.
Pennsylvania v. Wheeling & Belmont Bridge Company was the final case in
which the Taney Court issued a nationalist ruling. At issue was a bridge constructed by
the Wheeling & Belmont Bridge Company that passed over the Ohio River.

247
Genessee Chief v. Fitzhugh.

103
Pennsylvania was concerned because the height of the bridge was not high enough to
allow steamships to pass under it. Thus, the bridge acted as a barrier against any ship that
accessed the Keystone State via the Ohio River. Wheeling responded by saying that the
bridge was high enough to allow ships to pass under, so long as those vessels had
chimneys that could be lowered. They presented expert testimony, which said, “the
process of raising and lowering does not produce much delay.” Pennsylvania did not
agree. They said that the boats that come down the Ohio traveled faster than on most
other rivers. Most of the boats arrive during nighttime. Altogether, “the task [of
lowering chimneys] is to be accomplished under the most formidable dangers. Upon a
slippery deck, over boilers of steam and a fiery furnace, contending with wind and
current,” the boat must be guided into narrow space while large three-ton chimneys must
be lowered. Pennsylvania concluded, “It is plain that any accident, under these
circumstances, involves hazard and destruction to life and property.” Meanwhile,
Wheeling simply said, “The bridge will not be an appreciable inconvenience to the
average class of boats.” The defendants also alleged Virginia’s exclusive sovereignty
over the Ohio River.
Justice John McLean authored the Opinion of the Court, declaring, “The fact that
the bridge constitutes a nuisance is ascertained by measurement.” That is, he believed
that a low bridge would give the Court reason to declare it an obstruction. On the other
hand, if the bridge was high enough, the Court could not grant an injunction. McLean
decided that there must be a point where a 300-footlong section of the bridge stood at
least 111 feet above the water. Since the Wheeling & Belmont Bridge did not meet these

104
specifications, the Court ruled, “the bridge obstructs the navigation of the Ohio, and that
the state of Pennsylvania has been, and will be, injured in her public works.”
248

Chief Justice Taney’s dissent declared that Congress did have the right to regulate
commerce upon the Ohio. Congress also had the right “to declare any such obstruction a
public nuisance…for example, the height of a bridge,” and to pursue a course of action
through the federal court system. However, the Legislature had not provided any
guidelines for heights and lengths of bridges over rivers. Taney explained, “There is no
law of the United States declaring an obstruction in the Ohio or any other navigable river,
to be a public nuisance, and directing it to be abated as such. We can derive no
jurisdiction, therefore.” It came down to the Tenth Amendment for the Chief. He
reasoned that the entire bridge was located within Virginia, and that “she still possesses
the same control over the river, subject to the power of Congress, so far as concerns the
regulation of commerce.” Since Congress had not stepped in, Virginia could do what she
pleased. Taney stated, “Virginia has authorized it, and Congress have acquiesced in
it…How can the Court, to whom the power is not granted, undertake to regulate it, and
declare this bridge an unlawful obstruction?” He thought McLean’s measurements were
a task that should be decided by a legislature, not a court. He labeled the majority
opinion a “grave error.”
249

248
Pennyslvania v. Wheeling & Belmont Bridge Company 54 U.S. 518 (1842).

249
Chief Justice Roger B. Taney’s dissent in Pennsylvania v. Wheeling & Belmont Bridge Company.

105
States Rights Cases
The Supreme Court of the second third of the 19
th
century spent a good deal of
time undoing the work that had been done in the first third. Though the Court did issue a
few rulings that seemed nationalist, it dealt with far more that upheld Jacksonian
commitments to states rights and limited government. The Court was instrumental in
helping the regime implement these ideals. Throughout the era, the Judiciary dealt with
cases where issues of federalism and state involvement were at stake. Most of the time,
the Democratic Court handed down a reliable, predictable ruling. Many of the decisions
overturned—or least scaled back—a number of the historic Marshall rulings on the
federal government. The first such case came in Taney’s first full term on the Bench.
In 1830, Missouri had passed a law authorizing the state to issue loan certificates
that were used as a medium of exchange. Writing for the Court, John Marshall had
struck down the law as unconstitutional in Craig v. Missouri. He argued that it violated
the ban on states issuing bills of credit, even though Missouri had not expressly deemed
them legal tender.
250
Only 5 years later, the Taney Court all but reversed the decision.
In 1820, the Kentucky state government authorized the incorporation of the Bank
of the Commonwealth of Kentucky. The Bank was to be managed by a president and 12
directors, all of whom were voted on by a joint ballot of both houses of the Kentucky
state legislature. Each year, the president was responsible for making a report for the
state legislature. The Bank was the exclusive property of the state, and no citizen or
corporation could own any stock in it. All profits derived from the Bank were to be

250
Craig v. Missouri 29 U.S. 410 (1830).

106
handed over to the state treasurer.
251
Kentucky entrusted the Bank with a number of
considerable powers. It could make loans on good personal security. It helped buy and
sell available frontier land. Most concerning, the Bank could issue bank notes, which
were payable in gold and silver to the bearer on demand. The Bank had loaned some
notes to John Briscoe. When collection time came around, Briscoe alleged he did not
have to pay anything back because the notes violated the Constitution’s prohibition on
bills of credit, and were therefore void.
Briscoe claimed that the Bank was not really a private corporation, but a
governmental entity. His counsel argued, “All the officers were appointed by the state.
They were the agents of the state, to conduct the business of the Bank, for the benefit of
the state.” The notes issued by the Bank were backed by the faith and credit of
Kentucky, which made them bills of credit issued by a state. “The notes of the
Commonwealth Bank were in respects the same…[as] ‘bills of credit,’” they argued. The
appellants pointed out that a state could never act on its own; it needed agents to carry out
its functions. Briscoe highlighted that Kentucky was the only stockholder and that all
dividends belonged to the state. The bank president, directors, etc. were just agents of the
state government, hired under the auspices of a private corporation, but charged with
carrying on the business of the government. “The only difference,” counsel said, “is that
the agents are called by different names.” But in every other detail, they were the
identical; and “bank bills and bills of credit…[were] substantially and essentially the

251
This item was added a year after the Bank’s incorporation.

107
same.” They were unconstitutional, and Briscoe was not responsible for repayment of
illegal tender.
The defense warmly admitted that the Constitution explicitly prohibited bills of
credit issued by states. The notes in question, though, were not bills of credit, but bank
notes issued by a private corporation. “The state of Kentucky did not issue these notes,
they were issued by a corporation.”
252
And the Constitution allowed those kinds of notes.
Moreover, the bank notes did not mention the name of the state. The Bank fired back,
“Nothing appears in their language, nothing in the emission of them, to sanction such an
assertion [of unconstitutionality].”
Justice McLean penned the majority opinion, leading off with: “Important as have
been the great questions brought before this tribunal for investigation and decision, none
have exceeded, if they have equaled, the importance of that which arises in this case.”
The rest of the opinion was not as striking. Despite admitting that “it would be in vain to
assert that on its head, the case is clear of difficulty,” the opinion just repeated much of
what the Bank had already stated in their argument. McLean presented a short, and
relatively unmemorable passage about the Tenth Amendment. Certainly important to this
analysis, though, he encouraged states rights. He said that the federal government was
not the exclusive incorporator of banks, and that states had every right to create them.
Moreover, those banks had the right to issue notes, because, surely, the Constitution did
not explicitly prevent such an action. McLean responded directly to Briscoe’s argument,
saying that his counsel did not understand its own implications. If banks were not

252
Briscoe v. Bank of the Commonwealth of Kentucky 36 U.S. 257 (1837).

108
allowed to issue notes, the Justice said, then “all banks incorporated by a state are
unconstitutional…This doctrine is startling.” He carried it further, saying that $400
million worth of capital would be unconstitutional and void. “Almost the entire
circulating medium of the country” would be illegal.
Additionally, McLean argued that the corporation’s susceptibility to being sued
meant that it could not be a state entity. He said that the Eleventh Amendment made it so
that “no sovereign state was liable to be sued without her consent.” McLean also
believed that a few years earlier, the Court had already determined whether the Bank of
the Commonwealth of Kentucky was a state entity. In 1829, investors had deposited a
large sum of money in the Bank. They tried to withdraw the money, but were given bank
notes instead. Not very pleased, they sued the Bank, which, in a completely opposite
logic from the Briscoe defense, argued that it was a state entity, and therefore could not
be brought into court. McLean cited Justice William Johnson, who pointed out that if
that Bank were part of the state, then its issuance of bank notes was unconstitutional.
Johnson wrote, “No doubt the state here intended to avoid [that claim].” McLean
commented, “Can language be more explicit and more appropriate than this?”
Lastly, McLean’s opinion repeated many of the Bank’s claims regarding its
corporate status. First he described a bill of credit as paper circulated as money and used
in everyday transactions. It had to be issued and backed by the state; or, by agents of the
state who “do not incur any personal responsibility, nor impart, as individuals, any credit
to the paper.” McLean then inspected who had issued the notes: “Upon their face, they
do not purport to be issued by the state, but by the president and directors of the Bank.”

109
The Justice then responded to the potential criticism of the Bank managers acting as
agents of the state. He said that there was no law binding those employees to the state—a
necessary component of corporate agency. A couple other facts were noteworthy to
McLean. The state did not pledge to back the notes; the Bank did. Without public
assurance that the notes would not default, McLean thought it difficult to deem the Bank
as part of the state. Likewise, the Bank had sufficient funds in gold and silver to back the
notes. Finally, reiterating the Bank’s defense, the bills did not have the impress of
sovereignty. In granting the charter, the state had not handed over formal power to the
institution. “It is a simple corporation, acting within the sphere of its corporate powers,”
McLean concluded.
253

Joseph Story’s dissent in Briscoe v. Bank ranks among his most memorable
opinions. Worthy of the claim, it also overshadows Smith Thompson’s simple, but
poignant opinion. Thompson concurred with McLean on the merits, saying that the Bank
of the Commonwealth of Kentucky was not truly a governmental entity. But Thompson
castigated Kentucky for creating a corporation that was basically under the state’s
control. He lamented, “The corporation is the mere creature of the state, and entirely
subject to its control…Such an important provision in the Constitution may be evaded by
mere form.” This is important because Thompson recognized the reality of the majority
opinion: it was a way to empower states (and thus further regime objectives) while
technically still staying within the four corners of the Constitution.
254

253
Briscoe v. Bank of Commonwealth of Kentucky.

254
Justice Smith Thompson’s dissent in Briscoe v. Bank of Commonwealth of Kentucky.

110
While Thompson seemed more to bemoan Kentucky’s subterfuge, Story rebuked
the Bluegrass State, as well as his Democratic colleagues. He said that the nature of the
bank notes was no different from bills of credit. The moniker given to the tender was
immaterial, for “surely, it will not be pretended, that the Constitution intended to prohibit
names, and not things.” Story provided a judicial test, “It is the substance we are to look
to; the question is, whether it is issued, and is negotiable, and is designed to circulate as
currency.” To Story, the Bank’s notes were the same as bills of credits. Yes, they had
been stripped of their more technical form, but “bills of the state issued by the agent of
the state, on the exclusive funds of the state, for the benefit and profit of the state; to
circulate within the state, and without any other responsibility than that of the state” were
surely state-sponsored. They had simply changed the name, and his fellow Justices had
either been tricked or willingly complied. “Mutato nominee, de te fibula narratur” [With
a mere change of the name, the story is acceptable to you], Story charged. The old
National Republican, however, would not fall into such a trap: “That a state may
rightfully evade the prohibitions of the Constitution, by acting through the instrumentality
of agents in the evasion…is a doctrine to which I can never subscribe.”
If the name change did not convince Story, then the Bank’s original charter
certainly did. He pointed out that the Bank was established “‘in the name and on behalf
of the Commonwealth of Kentucky.’” He was concerned that no other private citizen or
corporation could invest in the Bank. If the state had exclusive ownership, how could it
not be state-run? The state treasurer was even responsible for collecting the profits.
Moreover, “the president and directors were the mere agents of the state, appointed and

111
removable at its pleasure.” They had “no interest whatsoever in the institution…They
were not personally liable for non-payment of any of the bills, or notes, or debts of the
Bank.” In fact, Story believed that at anytime, Kentucky could “repeal and annihilate the
charter,” or even declare the Bank to be a formal part of the state government. Again,
Story warned, do not be fooled by names, “The bank existed for the sole benefit of the
state.”
255

Story’s dissent also made a couple of strategic moves. First, he responded to two
of McLean’s statements. Not to be outdone in presenting the importance of the case,
Story declared, Briscoe as “second to none which was ever presented to this Court.” He
also replied to McLean’s accusation that if the Bank of the Commonwealth of
Kentucky’s notes were unconstitutional, then all banks were illegal. Story flatly said,
“That proposition I utterly deny.” He explained that the Constitution did not prohibit all
kinds of bills of credit, only those issued by the individual states. To Story, the
corporation in question was not really a corporation at all. It was an arm of the state, it
issued bills of credit, and was therefore unconstitutional. This did not mean that a truly
independent bank could not issue bills of credit. They just had to make a cleaner break
with the state that granted the charter.
Finally, Story repeatedly called upon John Marshall, as well as Craig v. Missouri,
in his decision. Now, to McLean’s credit, he had tried to reconcile Craig with Briscoe.
He believed there were qualitative differences between the two cases that rendered
different rulings. (Oddly, McLean had dissented in Craig, making it somewhat strange

255
Justice Joseph Story’s dissent in Briscoe v. Bank of Commonwealth of Kentucky.

112
that he would even try to work around Marshall’s ruling, instead of simply denouncing it
as wrong.) The majority opinion explained that the notes in Missouri had actually been
signed by the state’s auditor and treasurer, as well as backed by the faith of the state.
These explicit guarantees and signatures made the Missouri notes state-sponsored bills of
credit. But, McLean mentioned, Kentucky did not officially support the Bank of the
Commonwealth of Kentucky. When comparing the two cases, McLean thought it easy to
see that “no two things have any property in common.”
Meanwhile, Story was flabbergasted: “After the decision of the case of Craig v.
Missouri, I had not supposed that this was a matter which could be brought into
contestation.” He cited the Craig decision, which had banned “paper intended to
circulate through the community for its ordinary purposes as money.”
256
Story hinted
that the Briscoe decision hinged on new appointees to the Court.
257
Among the majority
from Craig “was the late Mr. Chief Justice Marshall; a name never to be pronounced
without reverence,” who had asked, “[Can] the Constitution, in one of its most important
provisions, be openly evaded; by giving a new name to an old thing. We cannot think
so.”
258
Story closing lines point to the change of the guard in the Judiciary. Like
Marshall, that coalition was gone:
I have another and strong motive; my profound reverence and affection for the
dead. Mr. Chief Justice Marshall is not here to speak for himself; and knowing
full well the grounds of his opinion, in which I concurred, that this act is
unconstitutional; I have felt an earnest desire to vindicate his memory from the

256
Craig v. Missouri. Quoted in Story’s dissent in Briscoe v. Bank of Commonwealth of Kentucky.

257
Briscoe v. Bank of Commonwealth of Kentucky.

258
Craig v. Missouri. Quoted in Story’s dissent in Briscoe v. Bank of Commonwealth of Kentucky.

113
imputation of rashness, or want of deep reflection. Had he been living, he would
have spoken in the joint names of both of us.
259

This was now a Democratic Court pursuing Democratic goals, like states rights. It no
longer belonged to the Federalists or the moderate National Republicans. Briscoe was
the first case to demonstrate the shift in preferences.
Charles River Bridge v. Warren Bridge
Charles River Bridge v. Warren Bridge caused a huge uproar. Perhaps the most
notable of the Taney Court federalism decisions, it largely increased the power of state
governments. The legal battle took years to resolve, starting even before Taney joined
the Court. The real story, though, starts in 1650, when the colonial government of
Massachusetts granted Harvard College the exclusive right to operate a ferry across the
Charles River, which separates Boston from Charlestown. In 1785, Harvard negotiated
those rights away to a corporation charged with building a bridge across the river. The
bridge would have interfered with Harvard’s exclusive right to river traffic, but the school
accepted an offer from the Charles River Bridge Company to pay 200 pounds a year.
Construction of the bridge began a year later. Massachusetts also gave Charles River the
right to collect tolls for 40 years. In 1792, Massachusetts granted another charter to a
different company to build a bridge connecting Charlestown and Cambridge. Previously,
if anyone wanted to access either Cambridge or Boston, they had to use the Charles River
Bridge. The Charles River Bridge Company argued that they would lose half their profits
to the West River Bridge. The former lobbied the state legislature, which pressed on with

259
Story’s dissent in Briscoe v. Bank of Commonwealth of Kentucky.

114
the West River Bridge. The lobby efforts were not completely useless, though, as
Massachusetts extended Charles River’s right to collect tolls for another 30 years.
In 1823, a group of Charlestown merchants—led by Isaac Warren—proposed to
build a toll-free bridge across the Charles River. Spearheaded by Harvard and the
proprietors of the Charles River Bridge, the proposal failed. The Warren contingent
introduced similar legislation the next three years, failing each time. In 1827, the
legislature finally granted a charter for a new bridge, only to see Governor Levi Lincoln
veto the bill. Warren tried to override the veto with a two-thirds majority from each
legislative chamber. He got the votes in the lower house, but not the upper. Later, the
popular Lincoln won reelection, but lost ground in districts affected by the bridge. When
the bill passed the legislature again in 1828, the governor signed it into law. The charter
called for the same toll schedules that the Charles River Bridge operated on. But once
construction costs (plus 5% for interest) were met, the Warren Bridge had to be handed
over to the state. Regardless of profits, Massachusetts would assume control of the
bridge after 6 years. The charter also required Warren to pay half the Harvard
allowance.
260

After winning in the state legislature for so long, Charles River had finally lost.
Soon thereafter, the Warren Bridge claimed two-thirds of their business.
261
With the
elected branches proving to be of no help, Charles River turned to the courts. When the
state supreme court ruled for Warren in 1830, the company appealed to the US Supreme

260
Stanley I. Kutler, Privilege and Creative Destruction: The Charles River Bridge Case (New York:
Norton, 1978).

261
Charles River Bridge v. Warren Bridge 36 U.S. 420 (1837).

115
Court. In 1831, the National Republicans still controlled a majority of seats on the
Supreme Court, headed, of course, by John Marshall. With only 2 appointees sitting on
the Bench, the Democrats received a couple lucky breaks. For starters, Justice Gabriel
Duvall was absent from the case as he attended to his sick wife. The rest of the five
Justices could not reach a consensus on how to decide the case. It was slated for re-
argument, but nothing really happened until 1837. By that time, Andrew Jackson had
appointed five Justices, compared to two National Republican holdovers. Obviously, the
personnel was quite different than when the case was first introduced to the Court. For
Warren, the setting was more conducive to a judicial victory.
Table 11. Jacksonian appointments to the Supreme Court.
1831 1837
Justice Appointer (Party) Justice Appointer (Party)
John Marshall (Chief) John Adams (NR) Roger Taney (Chief) Jackson (D)
William Johnson Jefferson (J) Joseph Story Madison (NR)
Gabriel Duvall Madison (NR) Smith Thompson Monroe (NR)
Joseph Story Madison (NR) John McLean Jackson (D)
Smith Thompson Monroe (NR) Henry Baldwin Jackson (D)
John McLean Jackson (D) James Wayne Jackson (D)
Henry Baldwin Jackson (D) Philip Barbour Jackson (D)

During oral arguments, counsel for both sides addressed many of the same issues.
Both sides spent a considerable amount of time discussing the original charter, as well as
the carryover of the ferry rights. Charles River contended that the original 40-year
charter would be “absurd and contradictory” if they were mere tenants of bridge.
Certainly the legislature could not expel them at their own pleasure. They asked, “What,
then, is the nature of this mysterious power of the government, that can lawfully resume
its own grants; destroy its own contracts; disregard the obligations of good faith; and

116
trample upon every principle of equity and justice?” Warren answered, saying that the
state had not breached their contract in any way. Charles River still had control of their
bridge, and they still had the right to collect tolls.
The different views on the charter, of course, lie in the different outlooks on the
exclusivity of the original charter. Much of these views came down to the ferry. The
Warren Bridge Company turned to the original 1650 award, which read, “the ferry
between Boston and Charlestown is granted to the college.”
262
Nothing in that line gave
anyone any kind of exclusive control over the river. They also raised an interesting point
regarding the transfer of the ferry rights, saying that Charles River had not proposed any
kind of compensation when they wanted to build the first bridge. The defense pointed
out, “Those great and sacred private rights, which now figure so largely in this case, seem
to have been so serious obstacle to the introduction of a more convenient way; but a
change of interest, has probably wrought a change of opinion.” Representing Charles
River, Daniel Webster fired back that the company had in fact provided compensation:
the 200 pounds per year. Harvard had consented to the deal, and no matter what kind of
profits the company pulled in, it had to pay the College every year. Didn’t this agreement
constitute a transfer of the ferry rights? Webster thought so: “The proprietors of the
Charles River Bridge purchased the ferry franchise from Harvard College, and it became
their property for the purpose of erecting a bridge…and the privilege of excluding
rivals…It had the whole ferry rights.”

262
Quoted in Charles River Bridge v. Warren Bridge.

117
Naturally, Charles River believed that the state legislature had impaired the
obligation of their contract, and therefore, the construction and operation of the Warren
Bridge was unconstitutional. They pointed to their original charter, which stated, “a toll
be and hereby is granted and established for the sole benefit of the said proprietors.”
263

This line, they contended, gave them exclusive rights over the Charles River. It was “an
absolute, unconditional grant of tolls for 40 years.” Warren disagreed, “There is not a
word about any other rights and exclusive privileges. Nothing restraining the power to
make new bridges.” They presented a hypothetical involving a tavern owner who sold
his thriving business to someone else. Did that sale necessarily prevent the original
owner from opening up another tavern close to the first one? Warren also insisted
Charles River had consented to the principle of building other bridges when they
accepted a 30-year extension of toll collections in exchange for construction of the West
River Bridge. “It is absurd to suppose that the legislature intended to grant exclusive
privileges, in the same breath in which their existence was denied,” Warren argued.
Another battle took place over the issue as to whether the state was depriving the
Charles River Bridge Company of its property. The plaintiffs believed that the franchise
itself “is property, recognized as such, and protected as such.” They believed that the
building of a parallel bridge “takes the property…and gives it to the public. It is, in its
operation, an act of confiscation.” Counsel argued that if individual men were allowed to
deal with each other in this manner, the “civil polity would be broken down.” Though
the franchise to collect tolls was an intangible right, it still constituted the “destruction of

263
Quoted in Charles River Bridge v. Warren Bridge.

118
property.” Playing on the drama of it all, Webster declared that a property once worth
$300,000 was now not even worth $30. Even more dramatic, counsel held up the actual
charter of the Charles River Bridge, announcing it was “once worth half a million dollars;
and now not worth the parchment it is written upon.” Warren responded twofold. First,
the franchise to collect tolls was qualitatively different than the actual bridge. It might
create a “diversion of travel,” but there is “no property in travel, for nobody is obliged to
travel over their bridge…no one is under any obligation to pay toll, unless he passes the
bridge, and that is an optional act.” Second, Massachusetts never granted exclusive rights
in first place: “What they claim as their property was never granted to them…they do not
own what they suppose has been taken away.”
Unfortunately for Charles River, “Where [physical] property is not touched…the
owner may suffer.” Because the state had not taken anything from the Charles River
Bridge Company, there was no need to get into a discussion about compensation. The
defense said, “Where property is actually taken…there the party injured may have his
damage.” Interestingly, they stated that even if compensation was appropriate, that was a
matter for Massachusetts to settle, not the US Supreme Court. But the main point was
that this was not a case of public takings. Still, Warren did admit that the case involved
issues of eminent domain. Arguing that a state can never yield its right to eminent
domain, Warren said that granting an exclusive franchise over a river would do just that.
And “any act of the legislature disabling itself from the future exercise of its trust for the
public good must be void.” Moreover, when Charles River agreed to the contract, they
knew they were operating under the “paramount right of eminent domain,” just like every

119
other private corporation and citizen. The defense concluded, “It is plain, therefore, that
no property is exempt from this liability to be taken, unless the state has agreed to exempt
it.” The Charles River Bridge Company saw it differently. They admitted that the state
had the right to seize the franchise under the power of eminent domain with “the simple
condition of making a reasonable compensation for it…but they took the property
without paying for it.” In fact, “The government will then have got into their possession
two bridges, without the expenditure of a dollar.”
Warren not only believed that “the public needed new accommodation,” but also
“the public convenience demanded such improvements.” By maintaining an exclusive
monopoly over the river, Charles River “would bring the state to their feet, and place her
at their mercy.” They continued, “The public, therefore, may be said to stand on one
side, and the plaintiffs on the other.” The defendants reasoned that “numerous bridges
have been granted at or near old ferries” and that other Massachusetts free roads had
rendered many turnpikes worthless. Moreover, the advent of railways had begun to
supercede the importance of many of those free roads. Still, Charles River believed that
their private interests were taken away. They had even offered to improve their bridge at
considerable costs. The corporation was prepared to expand the width of the bridge,
build a higher draw, and/or make a spur bridge. The plaintiffs also agreed to build an
entirely new bridge, if necessary. They pledged themselves to “provide for the public
accommodation.” The state refused the offers.
An interesting moment took place during oral arguments. “The power to provide
public highways,” Warren had contended, “is an attribute of sovereignty, necessarily

120
residing at all times in a state.” On this point, Justice Story interjected. The Bench’s
participation in oral arguments is quite commonplace today. In fact, it is odd when the
Justices do not interrogate the attorneys. In the 19
th
century, though, oral arguments were
largely the presentations of the great lawyers of the day. Justices did not talk; they
listened. In Charles River, however, Story presented Simon Greenleaf (Warren’s
counsel) with a hypothetical. Imagine a railroad company given a charter that prohibited
any other railways from being built within ten miles of the proposed road. If the
company built the rail, Story asked, did the state then have the authority to grant another
road within 30 feet of the original one? Greenleaf said that the state would still hold such
a power. The case reads: “This struck him [Story], as it must have struck the Court, as
most startling doctrine.
Table 12. Topics in Charles River Bridge v. Warren Bridge.
Issue Charles River Argument Warren River Argument
Original Charter Broken Still functional
Ferry Gave Charles River exclusive
rights
Did not give Charles River
exclusive rights
Exclusivity Yes No
Franchise as property Yes No
Compensation due Yes No
Public vs. private interest Private Public

Story must have been even more shocked when the Court ruled in favor of
Warren. The Chief Justice authored the majority opinion, while Story wrote a passionate
dissent. Taney believed that the right to operate a ferry was separate from the right to
operate a bridge. Taney admitted that Harvard might have had an exclusive right to the
ferry business. When the College traded those rights to Charles River, the latter did not
receive the exclusive right to bridges, they only obtained ferry rights. Construction of the

121
bridge, though, destroyed the need for the ferry business, as well as the actual landings
used by the ferryboats. Quite simply, “the ferry then, of necessity, ceased to exist as soon
as the bridge was erected,” and the monopoly “must follow the fate of the ferry.”
Moreover, the Charles River charter did not include any mention of exclusivity. In fact,
it bought off Harvard in order to destroy any notion that one company would solely
operate the river. And just because Harvard used to have exclusive rights did not mean
that Charles River had them. Taney pointed out that if Massachusetts had indeed wanted
to grant Charles River exclusivity, they would have made an agreement just like the one
with Harvard. The fact that the charter was different indicates that no monopoly existed.
Taney wrote, “The fact that such a right was granted to the college cannot by any sound
rule of construction be used to extend the privileges of the bridge company beyond what
the words of the charter naturally and legally import.”
264

Story held “that the plaintiffs are the equitable assignees of the old ferry,
belonging to Harvard College…and, as such assignees, they are entitled to an exclusive
right to the ferry.” This, of course, excluded any other new bridges that might be built
between Charlestown and Boston. Story addressed Warren’s argument that agreement to
the extension of the charter amounted to consent to the construction of other crossings.
He did not see any reason why the two ideas were connected. Story declared, “In my
judgment, there is no foundation whatsoever, either in law, or in the facts, to sustain this
[connection].”
265

264
Charles River Bridge v. Warren Bridge.

265
Justice Joseph Story’s dissent in Charles River Bridge v. Warren Bridge.

122
Taney seemed convinced of Warren’s argument the public necessity for the new
bridge was good enough reason to construct it. The Chief framed it in terms of state
rights: “The state, by virtue of its sovereign powers and eminent domain, had a right to
take away the franchise of the ferry.” This was the very ideal that had startled Story
during orals. Taney expanded on his views, saying that the object of all government was
to promote the happiness of its members. Obviously, “travel and trade…are essential to
the comfort, convenience, and prosperity of the people.” The state could never give up
the power to regulate travel.
266
Story agreed that his interpretation of the terms of the
grant might have imposed burdens on the state, but he believed that Massachusetts had an
obligation to Charles River to “secure him in the enjoyment of what is actually granted.”
For Story, private property and the need to uphold contracts was more important than
breaking them in the name of benefiting the public.
267
Taney disagreed: “While the
rights of private property are sacredly guarded, we must not forget that the community
also have rights, and that the happiness and well being of every citizen depends on their
faithful preservation.”
268

It was a practical matter for both Justices. Taney had two problems with the
plaintiff’s claims. First, if Warren did infringe upon Charles River, then how was the
Court to determine that the former was too close to the latter? Taney did not see a
systematic way for interpreting that line of argument. Secondly, the plaintiff’s argument
halted progress. Speaking on turnpikes, Taney said that they had been “utterly ruined by

266
Charles River Bridge v. Warren Bridge.

267
Story’s dissent in Charles River Bridge v. Warren Bridge.

268
Charles River Bridge v. Warren Bridge.

123
the introduction of newer and better modes of transportation and traveling.” He
mentioned that some railroads had made particular turnpikes so useless that they were not
worth preserving. In addition, if Charles River’s claim was used to decide the case, there
would be hundreds of lawsuits brought by the old turnpike companies. They would
“awaken from their sleep…We shall be thrown back to the improvements of the last
century…This Court is not prepare to sanction principles which must lead to such
results.”
269

Story also had a practical slant on the case. He addressed Taney’s first concern
regarding the geographic boundaries to a franchise. Story believed that any reasonable
distance that did not interfere with the travel of the Charles River Bridge would be
suitable in determining its exclusive rights. Regarding the public’s rights, Story believed
that allowing for the Warren Bridge actually hurt the public. It destroyed confidence in
the marketplace. During oral arguments, Warren had said that exclusive contracts were
not necessary to induce businessmen to venture into bridge building. In his dissent, the
Associate Justice spent a considerable amount of time deconstructing the merits of this
line of thought. He said, “no persons can be found willing to undertake such a work,
unless they receive in return the exclusive privilege of erecting it, and taking toll.” He
could “conceive of no surer plan to arrest all public improvements” than to take away the
right to make a profit from them. The Charles River Bridge Company had “taken upon
themselves the chances of success; and if the enterprise failed, the loss was exclusively
their own.” But in the case before the Court, Charles River had been deprived of possible

269
Charles River Bridge v. Warren Bridge.

124
gains, while still on the hook for possible losses. “No man will hazard his capital in any
enterprise, in which, if there be a loss, it must be borne exclusively by himself; and if
there be success, he has not the slightest security of enjoying the rewards.” If the state
was truly committed to the public good and means of transportation, then “there must be
some pledge, that the property will be safe.” Story “put it to the common sense of every
man:
Whether if at the moment of granting the charter the legislature had said to the
proprietors; you shall build the bridge; you shall bear the burdens; you shall be
bound by the charges; and your sole reimbursement shall be from the tolls of forty
years: and yet we will not even guarantee you any certainty of receiving any tolls.
On the contrary we reserve to ourselves the full power and authority to erect other
bridges, toll, or free bridges, according to our own free will and pleasure,
contiguous to yours, and having the same termini with yours; and if you are
successful we may thus supplant you, divide, destroy your profits, and annihilate
your tolls, without annihilating your burdens: if, I say, such had been the language
of the legislature, is there a man living of ordinary discretion or prudence, who
would have accepted such a charter upon such terms? I fearlessly answer, no.
270

New York v. Miln
New York v. Miln was the final case in the Revolution of 1837—a trio of cases
demonstrating the dramatic turn away from Marshallian decision-making. In the early
19
th
century, New York City had passed a law requiring all ships entering the city to
make a report to the mayor. The report had to include the name, age, occupation, place
of birth, and last residence of everyone on board the vessel. Failure to provide the city
with the information carried a $75-per-person penalty. In August 1829, the Emily arrived
in New York with 100 passengers, and shipmaster William Thompson did not make the
report. The ship’s captain, George Miln, was ordered to pay the $7500 fine. In 1835, the

270
Story’s dissent in Charles River Bridge v. Warren Bridge.

125
Marshall Court heard the case, but ordered a re-argument due to absences by some of the
Justices.
Since both parties and the two major opinions in the case called upon Gibbons v.
Ogden, it is probably necessary to first describe the Marshall Court decision. In the first
two decades of the 19
th
century, Robert Fulton’s steamboats held a monopoly over traffic
on the Hudson River. Working under Fulton, Aaron Ogden was granted the necessary
state-issued license to run a ferry service from New York City to New Jersey.
Simultaneously, Thomas Gibbons had received a Washington-issued license to run a
separate, parallel ferry. Ogden quickly received an injunction from New York state
courts prohibiting Gibbons from doing business. Marshall, however, ruled that the
Commerce Clause gave Congress the right to regulate the route. The Court then declared
that New York’s law violated the Supremacy Clause, and was therefore void.
271

In New York v. Miln, the state argued that Gibbons did not affect the present case.
They contended that Congress only had the exclusive right to regulate commerce when
the specific issue applied to the country as a whole. The New York law, on the other
hand, only affected one state. Additionally, Marshall had spoken on an issue in which
Congressional law butted up directly against state law. That is, Congress had been
actively trying to regulate commerce in Gibbons. In Miln, Congress had passed no such
law. Even though Gibbons upheld federal regulation of trade, it was never “intended to
deny to the states all legislation which might affect commerce.” New York told the
Supremes that if they found for Miln, they would have to “come to the conclusion that

271
See Gibbons v. Ogden 22 U.S. 1 (1824).

126
the power regulating commerce is so exclusive that all state laws affecting or regulating
commerce are necessarily void, even where no conflict exists.” Of course, New York
provided another option: “that the power to regulate commerce is not exclusively in
Congress, but concurrent in the states; and that state laws are valid, unless conflicting.”
They also explained how the concept applied to the case in question, saying that the
federal government could very well regulate passenger manifests, but “there is nothing in
the Constitution which compels Congress to do so.” Since the Legislature was silent, the
state had authority over the issue. The key, though, was there was no incompatibility
between US and New York law; “all the provisions of the laws of the United States are
left in full force.”
Though the concurrent jurisdiction argument was counsel’s main thrust, they also
provided another claim, saying, “In our view, the law in question is altogether a police
regulation.” They said that the issue might not even involve commerce whatsoever. It
was an act intended to provide for the public good by trying to keep out unwanted
foreigners and possible paupers—both of which were considered a drain on society.
These attempts to secure the public good had little, if anything, to do with interstate
commerce. They were the inherent police powers given to the states, “those great
conservative rights which all governments have, and must have, and must maintain, and
must preserve.”
Miln thought the case absolutely involved issues of commerce. Commerce is not
merely buying and selling, and the exchanges of commodities,” they argued, “It is
navigation, and the intercourse between nations…as well as the transportation of

127
passengers and persons.” They said that the provisions of the New York law interfered
with interstate commerce because most of the incoming ships came from either another
state or international waters. Miln stated, “It is in direct opposition to the power which is
given by the Constitution to Congress to regulate commerce.” Moreover, they contended
that despite claims of Congressional indifference, the Legislature had indeed spoken on
the issue by passing bills regarding passengers on interstate vessels. Those laws had not
spoken of the stipulations or duties as required by New York. In addition, US treaties
had laid out the regulations and requirements regarding citizens of other countries. The
New York law violated these federal procedures by effectively taking away the
“assurances of ingress and protection to the citizens or subjects of a foreign state.”
Employing the opposition’s same tactic, Miln’s lawyer said that if the Court ruled in
favor of New York, then “the whole [federal] power to regulate emigration may be taken
away; the whole passenger trade of the United States may be cut off; and thus one of the
principal powers of the general government will be destroyed.”
Justice Barbour wrote for the Court, and spent most of his succinct decision
discussing the police powers. “We are of opinion that the act is not a regulation of
commerce, but of police,” he recorded, “and that being thus considered, it was passed in
the exercise of a power which rightfully belonged to the states.” Not only did the right
belong to the state, but it was the “bounden and solemn duty…to advance the safety,
happiness, and prosperity of its people, and to provide for its general
welfare…consequently, in relation to these [powers], the authority of a state is complete,
unqualified, and exclusive.” The Court saw two reasons why New York had such

128
authority. First, the entire case involved only one state. It was “within the jurisdiction of
New York,” operated on people “found within the same territory,” and “for whose benefit
it was passed, they are the people of New York.” It could not be an interstate commerce
issue if it did not meet the interstate qualifications. To sum, “A state has…undeniable
and unlimited jurisdiction over all persons and things within its territorial limits.”
Secondly, preventing the influx of immigrants and paupers was a noble cause.
Barbour took this even further, saying that the Empire State had even bigger
responsibility than any other state. He wrote:
New York, from her particular situation, is, perhaps more than any other city in
the Union, exposed to the evil of thousands of foreign emigrants arriving there,
and the consequent danger of her citizens being subjected to a heavy charge in the
maintenance of those who are poor. It is the duty of the state to protect its citizens
from this evil…We think it as competent and as necessary for a state to provide
precautionary measures against the moral pestilence of paupers, vagabonds, and
possibly convicts.

Finally, Barbour addressed how New York v. Miln differed from Gibbons v.
Ogden. He believed “there is not, in this case, one of the circumstances which existed in
that of Gibbons v. Ogden.” In Gibbons, the body of water involved an interstate
passageway over which Congress had jurisdiction; in Miln, the river was entirely within
New York’s boundaries. The issue in question in Gibbons was the right to navigation, a
power Congress held. The newer case dealt with passengers whose rights and duties
were controlled by the state upon which they entered. Finally, in Gibbons, the state law
clashed with federal law; in Miln, there was no such controversy. To sum up the

129
majority’s opinion: Miln had nothing in common with Gibbons; and the Court expanded
states rights via broad police powers.
272

Table 13. Gibbons and Miln.
Issue Gibbons v. Ogden New York v. Miln
Jurisdiction Interstate waterway indicated
Congressional jurisdiction
Intrastate river gave New
York jurisdiction
Issue Right to navigation Passengers entering the
state
Supremacy Clause Federal law trumped state
law
No federal law existed

Once again, Joseph Story entered a dissent, this one much shorter than his Briscoe
and Charles River opinions. He again called up the legacy of John Marshall, declaring,
“I have the consolidation to know that I had the entire concurrence, upon the same
grounds of the great Constitutional jurist, the late Mr. Chief Justice Marshall.” Story said
that when the Court had first heard the case in 1835, Marshall’s “deliberate opinion was
that the act of New York was unconstitutional; and that the present case fell directly
within the principles established in the case of Gibbons v. Ogden.”
273
Right from the
start, Story took issue with the majority’s assertion that the case could be reconciled with
Gibbons. Quoting Marshall’s original decision, he said the intrastate defense was faulty,
“The power of Congress does not stop at the jurisdictional lines of the several states. It
would be a very useless power, if it count not pass those lines…The power of Congress
then comprehends navigation within the limits of every state.”
274
Story admitted that
states had a right to “pass poor laws, and laws to prevent the introduction of paupers into

272
New York v. Miln 36 U.S. 102 (1837).

273
Justice Joseph Story’s dissent in New York v. Miln.

274
Gibbons v. Ogden. Quoted in Story’s dissent in New York v. Miln.

130
the state.” But the police powers could not “contravene the laws of Congress rightfully
passed under their Constitutional authority.” It did not matter that the Legislature had not
spoken on the issue; “The power given to Congress to regulate commerce with foreign
nations, and among the states, has been deemed exclusive…It seems to me impossible to
maintain the doctrine, that the states have a concurrent jurisdiction.”
275

Bank of Augusta v. Earle
The nation entered a severe recession in 1837. Although Jackson was mostly to
blame—the removal of deposits in the National Bank had long-term economic impacts—
his successor, Martin Van Buren, was saddled with the problem.
276
Politically vulnerable
to the upstart Whig Party, the Democrats had every reason to fear the electoral
repercussions of the recession. Although their commitment to states rights and limited
government were important ideals, Democratic leaders were probably more focused on
holding Congress in 1838 and the presidency in 1840. Reliable Democratic Supreme
Court Justices were likely counted on to help the coalition. The last thing the regime
needed was an idealistic Court imposing the regime’s norms at the cost of pragmatic and
immediate help. Instead, the Court proved to be the branch most adept at easing the pains
of the recession, while also upholding sacred regime doctrines.
Bank of Augusta v. Earle was a consolidated case, representing a number of other
cases in which a bank of one state tried to cash bills of exchange from another state. One
of the noteworthy state banks interested in the suit was the Bank of the United States,

275
Story’s dissent in New York v. Miln.

276
See Skowronek, 129-177.

131
located & run only in Pennsylvania, and under the direction of Nicholas Biddle. The
main institution in question, though, was the Bank of Augusta, located in Georgia. The
Bank of Augusta had been chartered by the Georgia state legislature with the normal
rights of a bank, such as the ability to buy and sell bills of exchange. When a set of notes
became available for purchase in Mobile, Alabama, the Bank of Augusta had its agents
purchase some of them. After a while, the Bank took the notes back to Alabama and
tried to cash them in. Proprietors of the notes would not cash them, saying that a
corporation outside of Alabama could not have bought the notes in the first place, which
made Bank-held notes void. Augusta sued, arguing that the original sale was well within
its rights as a corporation.
Counsel for both sides presented dual stories. The Bank of Augusta said that
Georgia had every right to buy bonds outside her borders. Meanwhile, Alabama
disagreed, and added that she did not have the right to sell the notes in the first place.
Georgia disagreed with the latter.
Table 14. Bank of Augusta v. Earle.
Could Georgia buy notes? Could Alabama sell notes?
Georgia’s stance Yes Yes
Alabama’s stance No No

Georgia admitted that she could not conduct her own banking outside her borders.
However, while “the Bank of Augusta cannot carry on the business of banking in
Alabama…it could transact the business of banking there.” That is, the Bank could get in
on the normal business of the marketplace; and “buying and selling exchange is a thing
open to all the world.” As long as the Bank of Augusta’s charter provided for such
transactions, there was no reason to think it could not buy notes from other states.

132
The real question for Georgia was whether the Alabama state legislature had
banned out-of-state corporations from being able to buy notes. The Bank of Augusta
never argued that Alabama did not have the right to ban such sales; they simply argued
that she hadn’t done so. The plaintiffs maintained, “What is not prohibited is lawful, and
is under the protection of the law…It remains only to consider whether there is any law
of the state of Alabama which forbids the purchase of a bill of exchange within her limits
by a corporation of another state.” Since there was no such law, the Bank argued, then
there must be some other motivation behind the lawsuit. “Profit is her policy,” they
declared. Alabama was only in Court because it sought to lose money to its eastern
neighbor. Plus, the Bank said, if the profit argument were carried further, not only could
outside banks not purchase the bills, but all outside citizens would likewise be banned.
The plaintiffs took great pains to show how devastating a pro-Alabama ruling
would be. Counsel pleaded with the Justices to “consider the immorality of urging and
aiding the breach of contracts fairly made…consider also the great injury to commerce
and trade.” They said that innumerable contracts had been made between citizens and
corporations of one state with institutions of another, as well as between statewide
companies and England. “What disorder and gross wrong would be caused by
introducing a principle that would declare them illegal and void!” Arguing for the Bank,
Daniel Webster warned, “I see neither limit nor end to the calamitous consequences of
such a decision. I do not know where it would not reach, what interests it would not
disturb.” Finally, lawyers for the Bank seemed to play on the current economic situation,

133
saying, “A deeper wound will be inflicted on the commercial business of the United
States than it has ever sustained.”
Earle’s presentation was quite short, consisting of the two principles already
mentioned. They first struck out at the plaintiffs, specifically pointing out Biddle’s
Pennsylvanian institution. They said that its charter “gives it no powers to be exercised
out of the state. This is a sufficient evidence of the restriction of its existence to the state
of Pennsylvania.” This was an odd strategy, because they implied that if a bank was
authorized to deal outside its home state (like the Bank of Augusta), then it might be
allowed to do so. More importantly, though, Alabama had not recognized the right of
any non-Alabaman corporation to do business there. “No corporation can exist but by
express permission of that state in which it acts.” It was up to each state whether or not a
corporation was allowed to operate within its respective boundaries. Since Alabama had
not sanctioned the Bank of Augusta, it could not do business west of the state line. The
Union was upheld “by the states remaining sovereign, and the corporations remaining
subject; not by sovereign corporations and subject states.”
Alabama’s right to exclude Georgia was actually not a contested point. The Bank
of Augusta conceded that Alabama could exclude its operators if Alabama expressly
outlined that provision. In a very complicated sequence, Alabama believed she had
provided that stipulation. In 1827, the Alabama Assembly declared it “unlawful for any
person, body corporate, company, or association, to issue any note for circulation as a
bank note, without the authority of law.” That is, unless the state legislature condoned
the business, it was illegal. The measure was meant to protect the state banking industry,

134
which was explicitly handled by a single bank. In 1833, the Assembly repealed all laws
except those contained in a special digest. The 1827 law did not make it into the digest;
therefore, Georgia countered, the law was no longer even on the books. Alabama replied
that it had been a clerical error and by all means, the 1827 law was surely supposed to be
included in the special digest.
In a remarkable opinion, Taney ironically ruled in favor of Biddle. The whole
1827/1833 affair did not really matter that much because it dealt with circulating bank
notes, not buying them. “This act…contains no prohibition against the purchase of bills
of exchange,” the opinion read. Never one to leave a legal issue hanging, Taney went
further, saying that if the Court followed Alabama law, it would have found for Georgia
because it was bound to follow what was actually in the books. He wrote, “This Court
cannot act judicially upon such an assumption [of omission]. We must take their laws
and policy to be such as we find them in their statutes.”
277
Although Taney has received
a lot of criticism for continuing his Dred Scott ruling after it was necessary, his
addendum in Bank of Augusta v. Earle was important. He had indicated that the Court
would have ruled for Earle if Alabama had passed a more explicit law outlawing out-of-
state competitors. As written, though, the only relevant statute was the Alabaman
constitutional provision relating to banks: “One state bank may be established.” This was
not enough to rule for the defendant. “When a Court is called on to declare contracts thus
made to be void upon the ground that they conflict with the policy the state,” Taney
wrote, “the line of that policy should be very clear and distinct.” Unfortunately for Earle,

277
Bank of Augusta v. Earle 38 U.S. 519 (1839).

135
“Nothing can be more vague and indefinite that that now insisted on as the policy of
Alabama…There is no law of the state which attempts to define the rights of foreign
corporations.”
278

Table 15. Georgia and Alabama law.
Georgia law Alabama law
Could they buy/sell notes? Yes, as long as the charter
was clear.
Yes, as long as the law was
clear.
Did their charters/law make
it clear?
Yes No

Although the ruling came down against the rights of Alabama (and in favor of the
hated Biddle), in actuality, it was a major victory for states rights. First, though Alabama
law was vague, “when the policy of a state is thus manifest, the courts of the United
States would be bound to notice it as a part of its code of laws; and to declare all
contracts in the state repugnant to it, to be illegal and void.” Taney had not said that
Alabama could not ban the Bank of Augusta; just that she had not banned outside banks.
This left the door open for each state having the right to prohibit outside corporations.
Additionally, the Court ruled that Georgia had a right to do outside business, but only
because “the charter of the bank of Augusta authorizes it…to purchase foreign bills as
well as inland; in other words, to purchase bills payable in another state.” Thus, a state
could allow its own corporations to go beyond its borders, again, as long as it was
expressed in the original charter. Of course, this wholly depended “upon the laws of the
sovereignty in which it is exercised; and a corporation can make no valid contract without
[the home state’s] sanction.” In both instances, the states had control over their own

278
Bank of Augusta v. Earle.

136
institution. No other statement could express the Jacksonian commitment like Taney’s
line in the decision: “Each state must decide for itself.”
279

License Cases
State police powers again came up against federal commerce authority in the
License Cases. In the 1840s, Massachusetts, Rhode Island and New Hampshire all
placed taxes on any alcohol brought into their respective state. The statutes had two
effects. First, naturally, it cut back on the amount of alcohol each state sold. Secondly, it
provided an advantage for in-state sellers, who did not have to raise their prices due to
importation fees. The importers sued, claiming that state-to-state taxes violated the
Commerce Clause. Decided in 1847, the Court unanimously ruled for the New England
states, holding that they could tax incoming alcohol sellers. During oral arguments,
counsel for Rhode Island had tried to wrap the case around the issue of slavery. Because
of the need to defend section preferences for the peculiar institution, there were 6
separate opinions. Most of the Justices were on the same page in terms of states rights
and limited government.
The Chief Justice recognized that Congress had regulated the casks and vessels
through which alcohol had to be transported across state lines. But the case at hand
involved alcohol once it had completely crossed over into, and “become a part of the
general mass of property in the state.” Taney believed the fees were Constitutional, as
long as they operated only within the boundaries of a single state, which had voted for the
fees in the first place. He wrote, “So far as these regulations are merely internal…they

279
Bank of Augusta v. Earle.

137
are altogether independent of the power of the general government.”
280
A couple other
Justices agreed, like Peter Daniel: “Every state…must possess the inherent power of
controlling property held and owned within its jurisdiction.” The taxes did not infringe
on foreign commerce because “they are laws simply determining the mode in which a
particular commodity may be circulated within the respective jurisdiction of those
states.”
281
Justice Levi Woodbury agreed, asking what act of Congress collided with the
state laws. He said the “subject of buying and selling within a state is one as exclusively
belonging to the power of the state over its internal trade, as that to regulate foreign
commerce is with the general government.” Woodbury explained that the state did not
touch the item “on shipboard or between ship and shore…It does not operate…till they
have entered the state and become component parts of its property.”
282

Table 16. License Cases.
Issue Taney McLean Catron Daniel Woodbury Grier
Within-state regulation x x x
Police Power x X x x
States actually controlled
interstate commerce
x
Do not restrict importation x X X x

Counsel for the liquor importers had argued that the taxes were meant to
discourage sales, which surely violated interstate commerce. A number of Justices
disagreed with this argument. Taney said Congress had not banned the sale of alcohol,
and therefore the states were required to receive and allow the sale of it. However, they

280
License Cases 46 U.S. 504 (1847).

281
Justice Peter Daniel’s concurrence in License Cases.

282
Justice Levi Woodbury’s concurrence in License Cases.

138
were “not bound to furnish a market for it.”
283
Woodbury stated that Congress did not
guarantee vendors that they “shall sell their articles in such quantities.” Also, it did not
wholly restrict the importation of alcohol because a person could still import with the
intent to consume, and not sell.
284
McLean thought it was fair because the same fee was
charged to every importer. Moreover, it was a “charge upon the business or profession,
and not a duty upon the things sold.”
285
Finally, Justice Daniel simply said, “They do not
restrict importation to any extent…They do not prohibit sales either by wholesale or
retail.”
286

Most of the Justices who wrote opinions thought the case dealt with the police
powers. In this sense, the case reflected Miln. Woodbury believed, “The states stand
properly on their reserved rights, within their own powers and sovereignty, to judge of
the expediency and wisdom of their own laws.” Any other view of the matter would not
allow states to regulate their “general police.”
287
McLean stated that the fees “are
essentially police laws” and that “a license to sell an article…is a matter of police and of
revenue, within the power of a state.”
288
Lastly, the Chief thought that state could pass
any law “which it may deem necessary or advisable to guard the health or morals of its
citizens.” He said that the Constitution did not stop the states in their attempt to prohibit

283
License Cases.

284
Woodbury in License Cases.

285
Justice John McLean’s concurrence in License Cases.

286
Daniel in License Cases.

287
Woodbury in License Cases.

288
McLean in License Cases.

139
“spirits injurious to its citizens and calculated to produce idleness, vice, or
debauchery.”
289
Justice Grier said the three states did not have to explain their efforts
reduce “misery, pauperism, and crime.”
290

Justice John Catron’s opinion was different from the rest of the bunch. He
believed that the issue might have dealt with interstate commerce, but that the states had
always regulated interstate commerce. He wrote, “Congress has stood by for nearly 60
years, and seen the states regulate the commerce of the whole country, more or less.” For
Catron, the case was a practical matter, and the Court would create a lot of damage if it
ruled against the states. He explained, “We would by our decision expunge more state
laws and city corporate regulations than Congress is likely to make in a century on the
same subject.” Although the Constitution might have intended for the national
Legislature to deal with interstate trade, “it is now too late, under existing circumstances,
for this Court to say that the similar affirmative power to regulate commerce with foreign
nations and among the states shall be held an exclusive power in Congress.”
291
Of
course, Catron’s opinion was anomalous; the rest of the Bench all called upon the right of
the states to impose fees. They believed that it was not a matter for the federal
government to control; rather, each individual state could regulate alcohol as they saw fit.
Justice Woodbury’s final words on the case sum up the decision and dedication to the
ideal: “Our respect for states rights must require us not to interfere.”

289
License Cases.

290
Justice Robert Grier’s concurrence in License Cases.

291
Justice John Catron’s concurrence in License Cases.

140
West River Bridge v. Dix
A state’s right to eminent domain once again came before the Court in West River
Bridge v. Dix. In 1795, Vermont incorporated the West River Bridge Company, which
was charged with building a bridge, and given a 100-year grant to collect tolls. In
1839—well before the 100-year lease ran out—the state passed a law saying judges could
order the taking of thoroughfares and provide monetary compensation. In 1843, a judge
ruled that the state should take West River Bridge, establish a free road, and give the
company $4000. The company sued, claiming their bridge was worth $10,000, but more
importantly professing a violation of Constitutional protections against such takings.
West River made three arguments during orals. First, even if a state had a right to
eminent domain, that right extended only to physical property. It did not reach things
such as franchises, or the right to collect tolls. Toll collection was “a pure franchise,”
which “cannot be taken…and can only be extinguished by forfeiture.” Secondly, even if
a state could take the franchise via eminent domain, that action violated the Contract
Clause. West River said the law granting judges the right to take property breached the
Clause because “no state shall pass any law ‘impairing the obligation of contracts.’”
They reasoned, “The plaintiffs’s grant and franchise was a contract of the state for 100
years, and by this act of 1839, and the proceedings under it, that contract is not only
impaired, but utterly destroyed.” Finally, the company discussed the implications of a
decision affirming Vermont’s actions. They said that Vermont had not provided any new
public use. Whether or not they took the bridge, it would still stand there and provide a
river crossing. This taking expanded the reasons why a state could employ eminent

141
domain. In addition, West River warned that the precedent might lead to corruption. “If
these tolls are abolished by this proceeding,” counsel asked, “what prevents the state
from granting the same charter to some political favorite tomorrow?”
Vermont’s lawyers countered every claim the bridge company made. Whether
the state wanted to take the bridge or the toll rights, “the same sovereign power exists.
The same great law of public necessity, demanding that private right should yield to
public exigency, applies to both.” The state reasoned, “there is no difference in this
respect between land a franchise like the one in question.” Additionally, to Vermont, the
case did not involve the Contract Clause as much as it was about a state’s right to take
property necessary to improve the public good. As if invoking Charles River Bridge v.
Warren Bridge, the state constitution explicated, “private property ought to be
subservient to public uses when necessity requires it.”
292
Vermont believed that “the
power itself is an essential and indispensable attribute of sovereignty.” It could not be
given away or limited in its uses. “All real estate is held, or supposed to be held, by grant
from the state.” Therefore, the state had the right to take it back whenever it wanted.
Lastly, they responded to accusations of possible corruption by stating that “the property
has been taken, not for the benefit of another private corporation, but strictly and solely
for public use.”
The Court ruled for the state. Appropriately, the ardent states righter, Justice
Daniel wrote the opinion. He declared, “This power, denominated the eminent domain of
the state, is, as the name imports, paramount to all private rights vested under the

292
Quoted in West River Bridge v. Dix 47 U.S. 507 (1848).

142
government.” The case was not about contracts; it was about the public good. And it
“remains with the states to the full extent” to determine what the public good was, and
how it should be attained. At any rate, the “correct view of this matter” demonstrated
that “the right of eminent domain in government in no ways interferes with the
inviolability of contracts.”
293
Justice Woodbury wrote an interesting concurrence that
deserves brief mention. He said that Vermont could have given up the right to eminent
domain in the original charter. Still, that decision lied with the state, and the state only.
294

Cooley v. Board of Wardens
In 1789, Congress passed a bill saying that each state could determine how to
regulate the pilotage of its bays and harbors. That is, each state could require foreign
vessels to hire a local pilot to navigate ships through seemingly tricky waters.
Pennsylvania passed such a law, requiring non-local vessels to hire a local pilot to steer
the ships safely into Philadelphia. These ships, though, had an option. They could either
pay the local pilot, or pay a fee equal to half the pilotage cost. (Incidentally, the fee
would then go into a relief fund for widows and orphans of deceased pilots.) Aaron
Cooley captained the Undine and the Consul, a pair of ships prepared to enter
Philadelphia. He did not hire any local pilots, but he also refused to pay the fees. At the
Supreme Court, Cooley argued that the Constitution required that all duties, imposts, and
excises be uniform throughout the Union. The varying pilotage fees violated that section
of the Constitution. Pennsylvania replied, “The subject of pilotage is incapable of

293
West River Bridge v. Dix.

294
Justice Levi Woodbury’s concurrence in West River Bridge v. Dix.

143
uniformity throughout all the states.” They believed that Congress had allowed for home
rule in the first place because of such unequal demands.
The Court ruled in favor of the state. Justice Benjamin Curtis said that Cooley’s
argument that the fee amounted to a duty was inadmissible. Moreover, he accepted
Pennsylvania’s claim that uniformity was impracticable. Now, Curtis understood that
navigation involved interstate commerce, an area in which Congress was supposed to
have authority. However, he articulated a position that allowed the states some measure
of control over interstate commerce, especially considering the fact the Legislature had
passed a law allowing states to impose their own pilotage regulations. Curtis wrote:
The act of 1789 contains a clear and authoritative declaration by the first
Congress, that the nature of this subject is such, that until Congress should find it
necessary to exert its power, it should be left to the legislation of the States; that it
is local and not national; that it is likely to be the best provided for, not by one
system, or plan of regulations, but by as many as the legislative discretion of the
several states should deem applicable to the local peculiarities of the ports within
their limits.

In addition, Curtis seemed to reference the police powers, and the ability of states
to do what they felt was in the best interest of their residents. “[The fees] rest upon the
propriety of securing lives and property exposed to the perils of a dangerous navigation,
by taking on board a person peculiarly skilled to encounter or avoid them,” he said. The
language used here is similar to that from decisions like New York v. Miln and the
License Cases, where the Court granted the states broad police powers. In the end,
though, the main conclusion reached by the Court was that the Commerce Clause did not
give Congress the sole responsibility to regulate interstate commerce.
295
Granted, Curtis

295
Cooley v. Board of Wardens 53 U.S. 299 (1851).

144
recognized that Congress had devolved that authority onto the states. But still, this was a
far cry from Marshallian decisions where the feds were the only level of government
allowed to touch interstate commerce. By 1852, the Taney Court had made significant
inroads into what was considered one of the National Republicans’s (or at least,
Federalists’s) most treasured ideals.
Significantly, Justices McLean and Daniel provided the arguments for rejecting
the majority’s opinion and taking it further, respectively. McLean was troubled that the
Court had ruled that states had some original jurisdiction over interstate commerce. He
believed that state authority on the issue was only implemented via Congressional
acceptance. That is, the power always resided in Congress; they had just used whatever
the states had given them on this specific issue. McLean wrote, “This shows that
Congress claimed the whole commercial power on this subject, by adopting the pilot laws
of the states, making them acts of Congress.” The Legislature “cannot transfer to a state
legislative powers...[and] the states have no inherent power to pass these laws.”
296

Daniel, on the other hand, felt that the Court had not gone far enough in its declaration of
states rights. He did not feel that the states needed Congressional approval to regulate
pilotage laws. They were already inherent powers of the state. Daniel concurred in the
case:
It being conceded that this power has been exercised by the States from their very
dawn of existence; that it can be practically and beneficially applied by the local
authorities only; it being conceded, as it must be, that the power to pass pilot-
laws, as such, has not been in any express terms delegated to Congress, and does
not necessarily conflict with the right to establish commercial regulations, I am

296
Justice John McLean’s dissent in Cooley v. Board of Wardens.

145
forced to conclude that this is an original and inherent power in the States, and not
one to be merely tolerated, or held subject to the sanction of the federal
government.
297

Conclusion
Between the start of the Jackson and Lincoln administrations, the Democrats
filled 12 of the 14 vacancies on the Court. Some of the names are legendary in Supreme
Court—as well as American—history. Roger Taney removed the deposits from the
National Bank, and later went on to write the Dred Scott decision. Appointed by Polk,
Levi Woodbury was one of Jackson’s most trusted political advisors, and a key
participant in shaping the incipient Democratic philosophy. John A. Campbell left the
Bench after the South seceded and served as assistant secretary of war for the
Confederacy. James Wayne, Philip Barbour, Peter Daniel—these were all Southern
Democrats who had served in legislatures and were on record as party men. The only
appointment that might have caused the Democrats some trouble was that of John
McLean, who has an inaccurate reputation as a major obstacle to the Democrats.
Admittedly, he dissented in Cooley and wrote the Pennsylvania v. Wheeling decision.
Otherwise, he voted as a reliable—if sometimes quirky—Democratic appointee.
Table 17. McLean’s vote.

Case McLean’s Vote
Briscoe Wrote the majority opinion
Charles River Bridge Dissented, but on jurisdictional grounds, not the merits
Miln Voted with the majority
Bank of Augusta Voted with the majority
License Cases Concurred, one of many opinions, upheld state police powers
West River Bridge Concurred, upheld state’s right to eminent domain
Cooley Dissented

297
Justice Peter Daniel’s concurrence in Cooley v. Board of Wardens.

146
These appointments had a major impact on the way the Democrats utilized the
Court. In the early 1832, John Marshall had tried standing in the way of Indian removal.
Jackson had responded by not enforcing the Worcester decision. Only five years later,
the Democrats had put enough Justices on the Bench to produce a doctrinal “Revolution
of 1837.” It was a remarkable turnaround, not to mention a rapid one. With control of
the Judiciary’s majority, the Democrats could count on the Court to be a team player.
Moreover, once the regime had completed consolidating its constituency, it could move
on to implementing its program. After Indian removal, and especially after the 1832
elections, the Democratic Party turned more aggressively towards states rights and
limited government. Coinciding with the regime’s consolidation, the Court suddenly had
a Jacksonian majority.
These two facts (consolidation and appointments) ushered the Court into Stage 2
of the realignment cycle. No longer worried with having to ensure the political goal of
consolidation, the regime—including the Court—turned more towards the policy goal of
implementation. While Congress and the president legislated on issues like slavery and
internal improvements, the Court carved away at Federalist jurisprudence. Though
perhaps not explicitly charged with implementing a states rights agenda, the Court
appeared very aggressive in pursuing such a course. States could essentially issue bills of
credit and get around original charter stipulations. They had much broader police powers
and were even allowed some jurisdiction over interstate commerce. In all, regime leaders
were not just content with the Court, they must have been overjoyed, for only Taney and
company could deal with states rights and limited government in a Constitutional fashion.

147
The other branches did manage states rights and limited government issues, like slavery
and internal improvements. However, those legislative debates were framed more in
terms of public policy. States rights and limited government issues before the Court, like
police powers and interstate commerce, were framed in terms of Constitutional law.
In Stage 2 of the realignment cycle, we can expect the Court to perform this sort
of task for the regime. The passage of Stage 1 implies that the regime no longer has to
worry as much about the consolidation of its power. That is, in Stage 2, the regime feels
confident knowing that it will continue in power if it only delivers on its promises. Thus,
governance then becomes a matter of responsibility. Instead of seeking out favored
constituents (e.g., the Deep South with Indian removal), the regime is more concerned
with following through on its platform. With this in mind, the regime uses different tools
that the Court offers, especially when turnover in membership creates a pro-regime
Bench. Perhaps the greatest tool that the Court has to offer the regime is that of favorable
decisions in areas of Constitutional law. Though some might claim the Judiciary is only
a quasi-legal institution, it is still the branch best suited for handling legal matters. And
by framing states rights and limited government in Constitutional terms, the regime is
able to delegate the execution of its ideological vision to the Court. Of course, these
Constitutional decisions all have policy implications. And of course, the policies have
political implications too. In sum, the Stage 2 Supreme Court offers the regime a unique
set of tools by which party leaders can carry out their two main goals.

148
Chapter 4: Jacksonian Era—Stage 3
The Jacksonian party structure was built to avoid sectionalism. Until the Mexican
Cession, battles over the American System dominated much of 19
th
century politics.
National elites wanted it this way too. Henry Clay was more interested in maintaining a
protectionist tariff and building a national highway system than in protecting
Kentuckians’s right to hold slaves. Andrew Jackson seemed preoccupied with the
National Bank, rather than slavery. Largely the brain trust behind the second party
system, Martin Van Buren thought the two parties had defused “prejudices between the
free and slaveholding states.”
298
Rather than North or South, Van Buren believed that the
differences between the Whigs and the Democrats created more of a reason for people to
choose allegiances. He then worked hard to ensure that party politics dominated the
national scene. The lasting catchphrase in the historiography of the period is a “state of
courts and parties.”
299

But throughout the 19
th
century, slavery grew in national salience. The federal
government was largely successful in keeping the issue off the table—at one point, even
instituting a gag rule that barred Congressmen from discussing slavery. However, with
the acquisition of more western land, the extension of slavery became Washington’s
primary focus. For a good part of the period, leaders in both parties and both sections
were able to put off making polarizing choices by fashioning tenuous compromises that
satisfied just enough legislators. The last of these deals, the Kansas-Nebraska Act

298
Michael F. Holt, The Fate of Their Country: Politicians, Slavery Extension, and the Coming of the Civil
War (New York: Hill and Wang, 2004): 7.

299
See Stephen Skowronek, Building a New American State: The Expansion of National Administrative
Capacities, 1877-1920 (Cambridge: Cambridge University Press, 1982).

149
actually reneged on the first, the Missouri Compromise. Near failure to pass the Kansas-
Nebraska bill almost led to civil war. Immediate fallout from passage did lead to local
civil war. And more long-term fallout from passage led to national Civil War. Between
civil war and the Civil War, elected officials turned to the Supreme Court to save the
Union from dissolving.
The suggestion of having the Court deal with slavery was not a new one;
Congress had proposed doing so for more than a decade. But the Legislature had always
been able to devise some scheme that pleased (or, more accurately, barely pacified) the
different sections. After Kansas-Nebraska, the issue had become too explosive.
Congressional compromise was probably out of the question by that point. In fact, the
very last deal struck on slavery was the agreement that the Court should take over the
issue. It is on these premises that Dred Scott v. Sandford was to rescue the nation from
secession and violence.
In light of the strength of the regime and the alignment of the Court, it should
come as no surprise that the elected wing would turn to the unelected Judiciary to solve
its most divisive issue. With the regime starting to fracture from within, we can say that
the strength of the regime is quite weak. In addition, by the time Stage 3 comes, the
regime will have been in power for about 20 years. This length of tenure will have
provided the regime with the opportunity to appoint nearly all of the Court’s personnel.
As members of the sitting but crumbling regime, the Court will want to help resolve its
problems. And in Stage 3, the main topic is fulfilling the political goal of the coalition.
With the party consolidated and consensus issues already solved, the government will

150
turn to other issues that will likely splinter the regime. When this happens, it will be
nearly impossible to legislate, for if the regime sides with one wing, it alienates the other
and ultimately leaves its political goal unfulfilled. However, because the issue is of
primary importance to the polity, ignoring it leaves its policy goal unfulfilled. Regime
leaders will turn to the Supreme Court. The Court can resolve the policy dilemma with a
decision in one direction or the other. It also avoids the political dilemma because the
Justices do not stand for reelection. Meanwhile, elected officials from both ideological
wings can claim it as a judicial issue and still campaign on the consensus issues. In a
word, because of its institutional design, the Court can help maintain the party structure
in Stage 3 of the realignment cycle.
This chapter shows how the antebellum regime dealt with the political problem
of slavery. I start by going through the main crises surrounding slavery in the 19
th

century, and how party leaders skillfully avoided a showdown. The narration sometimes
pauses to describe how elected officials believed slavery to be a judicial issue. Stretching
back to 1848, Congressmen and presidents thought that the Supreme Court should step in
and solve the sectional problem. Following the Kansas-Nebraska Act, the Court did
intervene via Dred Scott. I discuss the background of the case, the lower courts trials,
and the Supreme Court’s decision. Finally, I end by explaining the Taney Court’s
decision in relation to its position in political time. The key is that the slavery issue was
tearing apart the otherwise dominant Democratic regime. In an effort to dispose of the
coalition-splitting issue, party leaders passed slavery to the Court.

151
Missouri Compromise
The first public national debate on a policy issue regarding slavery came when
Missouri was ready to apply for statehood in 1819, well before the Democrats even
existed. Michael F. Holt writes, “The ensuing debate was exceedingly rancorous, and it
contained almost all the elements that would characterize sectional controversy over
slavery expansion.”
300
It encompassed principles such as morality, economic efficiency,
democracy, liberty, property rights, representation, and sectional balance. The initial
debate on the possible extension of slavery was important precisely because it was the
first time the federal government had to deal with the issue. Both Northerners and
Southerners recognized that dangerous precedents could be set for future Congresses.
The North thought that the Northwest Ordinance’s ban on slavery in the Ohio River
Valley would provide the Union with the precedent for dealing with the peculiar
institution in the Western territories. The North was specifically afraid of allowing
slavery in lands west of the Mississippi River. The South feared that it might be the first
in a pattern of Congress unconstitutionally extending its authority by banning slavery.
301

Although the 16
th
Congress worked out the Missouri Compromise, debate on
Missouri began in 1819 under the 15
th
Congress. Even so, the discussion on Missouri
proper did not usher in the issue. Rather, the admission of other states and organization
of other territories first raised the issues that became so contentious in the Missouri
controversy. If the North was so opposed to Missouri entering the Union as a slave state,

300
Holt, 5.

301
Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (New York:
Oxford University Press, 1978): 101, 109.

152
why did it easily allow Alabama’s entry? With each section having exactly the same
number of Senators, wouldn’t Alabama upset the delicate balance? It could be that
“Alabama was surrounded by slave states and already held a slave population 4 times
greater than that of Missouri.”
302
However, the North likely provided no obstacle
because Illinois would come into the Union with Alabama, thereby maintaining equality
in the upper house. (The same probably held true in 1816 and 1817 when Indiana and
Mississippi were admitted as a pair.) That balance, though, was deceptive. In 1820,
Illinois might have been the most racist state in the country. Despite the Northwest
Ordinance’s ban on slavery in the area, somehow, 1200 slaves and indentured blacks
lived in Illinois. Two of the territorial governors had been slaveholders. Although the
state constitution formally barred slavery, it only applied to slaves brought into the state
thereafter. Slaves who were currently in Illinois, as well as their children, were still to be
considered slaves.
303
The state constitution also allowed for an apprentice system that
regulated free blacks. Illinois’s Senators were also Southern-born pro-slavery men. Sean
Wilentz comments, “In practical terms, there was an argument to be made that by
admitting neighboring Missouri as a slave state, the pro-slavery bloc in the Senate would
enjoy not a two-vote majority, but a four-vote majority.”
304

Meanwhile, Congress was also busy organizing the Arkansas Territory, where
several anti-slavery amendments failed. Interestingly, during the debate on Arkansas,

302
Fehrenbacher, Slaveholding Republic, 265.

303
Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780-1860 (Baton
Rouge, LA: Louisiana State University Press, 2000): 74.

304
Wilentz, 223. Richards points out that the tide soon turned in Illinois, and it became a reliable free state.
“In 1819, however, the proslavery element seemed to be in charge” (74).

153
Senator John W. Taylor of New York proposed that slavery be allowed in Arkansas, with
the provision that it be banned in any federal territory north of the 36° 30! line. The
measure failed, but Taylor would live to see the day when his latitudinal specifications
would play a major role in American politics.
305

Debate on Missouri proper kicked off in February 1819 with Congressman James
Tallmadge of New York taking the floor. Tallmadge was a freshman Congressman who
only had one month left to serve. He had not run for reelection, perhaps because of his
frequent sickness. Additionally, he had just returned to Washington from New York,
where he had buried his son.
306
These background conditions probably played in a role in
Tallmadge’s proposal to ban the future introduction of slaves into Missouri. He also
called for the emancipation of slaves born after admission once they reached the age of
25. The 10,000 slaves already in Missouri would not be touched.
307
The amendment
passed the House of Representatives in two parts. The “future introduction” passed 87-
76 and the emancipation clause passed 82-78.
308
The vote was sectional. Northern
Representatives voted 85-10 on the first measure, and 80-14 on the second.
309

Table 18. Tallmadge Amendment.
Section Yeas Nays
North 85 10
South 2 66
Total 87 76

305
Fehrenbacher, Dred Scott, 102, 105.

306
Richards, 52.

307
Fehrenbacher, Slaveholding Republic, 263.

308
Fehrenbacher, Dred Scott, 104.

309
Wilentz, 224.

154
The Senate (which, on paper, was equally divided between the North and South)
defeated the Tallmadge Amendment. Again, the voting was sectional, with 5 Northerners
joining a unified South in defeating the measure. Of note, both of Illinois’s Senators
were among the 5.
310
As if to show the South and/or Senate that the North and/or House
of Representative could, the lower chamber again passed the Amendment, this time by a
12-vote margin.
311
With no resolution on Missouri statehood, the 15
th
Congress expired,
leaving the issue to the next set of legislators.
Senator Taylor kicked off those discussions by again suggesting that Congress
draw a line through the country. This time, he proposed the Missouri River. Once more,
his plan failed. Soon afterwards, though, the House took up the issue of Maine’s
admission into the Union. Previous to statehood, Maine was formally a part of
Massachusetts. The latter had agreed to separate, and allow Maine to apply for separate
statehood. With its Northern majority, the House accepted an anti-slavery Maine. The
Senate then used Maine’s admission as an opportunity to settle the Missouri crisis. The
upper house agreed to the House’s vote on Maine, but added an amendment that would
also bring Missouri into the Union as a slave state. Yet again, sectional balance would be
achieved. Proposed by Jesse Thomas of Illinois, the Senate threw in another concession
to help prod the Northern-controlled House into passing its bill—it proposed that a ban
on slavery in Louisiana Purchase territory south of the 36° 30! line. Whereas Taylor’s
36° 30! plan would have made Missouri free, the Thomas Amendment made Missouri an

310
As was Harrison Gray Otis of Massachusetts, who later switched his vote. See Wilentz, 845, footnote
12.

311
Wilentz, 224.

155
exception to the rule. The Southern border would thereafter serve as the boundary
between slave and free.
312

At first, the House balked. It rejected the Senate’s deal twice, then passed a
separate Missouri bill that included a ban on slavery, as well as a stronger Tallmadge
Amendment—this one emancipating all children of slaves at birth.
313
Obviously, the
Senate rejected the new House bill. With the two chambers at an impasse, they appointed
a conference committee. At this moment, Henry Clay’s position as Speaker of the House
played an important role because it allowed him to choose moderate, pro-compromise
Representatives to meet with Senate delegates. The committee then recommended to the
House that it pass the Senate’s version of the bill. Still, Clay knew that passing the
compromise in a single bill was impossible. His decision to split the three measures up
and have them voted on separately was essential in legislating the Missouri Compromise.
The Northern majority gladly accepted Maine as a free state, and the House consented to
the 36° 30! line, despite some hardline objections from Virginia and the Deep South.
Meanwhile, 14 Northerners signed on to—and 4 others abstained from—lifting the ban in
Missouri, giving it a slim 90-87 majority.
314
Wilentz astutely notes, “What occurred in
1820 and 1821 was not a genuine compromise so much as it was a cleverly managed
political deal, patched together by moderate leaders frightened by the depth of sectional
antagonisms, yet unable to achieve genuine sectional accord. By pushing the two halves

312
Fehrenbacher, Dred Scott, 107.

313
Wilentz, 232.

314
Fehrenbacher, Dred Scott, 107; and Wilentz, 232-233.

156
of the compromise through the House on separate votes, Clay helped to create an
exaggerated sense of amity.”
315

Determining why a particular Congressman voted for or against the Missouri
Compromise is a difficult task. For starters, Senators had to consider the whole package
whereas Representatives had the omnibus broken up. For the most part, the North/South
split displayed in every vote probably lends itself to the parsimonious explanation that
sectionalism was the biggest factor.
Table 19. Initial vote on banning slavery in Missouri.
Section Yeas Nays
North 91 10
South 0 72
Total 91 82

Table 20. Final vote on allowing slavery in Missouri.
Section Yeas Nays
North 14 87
South 76 0
Total 90 87

Table 21. Vote on 36° 30! restriction
Section Yeas Nays
North 95 5
South 39 37
Total 134 42

On the whole, the South went for the Compromise; the North did not. Within that
split, there were some different motivations. Leftover Northern Federalists saw it as a
possible opportunity to reclaim the power they had lost at the beginning of the century.
316

At the very least, it was their chance to create a sectional party in the North. A group of

315
Wilentz, 236.

316
Fehrenbacher writes, “Some Federalist leaders appear to have seized upon the issue for partisan
advantage.” Dred Scott, 106. See also, Wilentz, 224.

157
Southerners were aware of the Federalist ploy and would stop at nothing to ensure
Democratic-Republican primacy. Although their Southern roots might have caused them
to support the Missouri Compromise anyway, their partisan leanings might have been the
main reason for their support.
317
While the Federalist contention was simply an anti-
South argument, a group of Northerners made the humanitarian case, saying slavery was
a moral crime. Some old enlightened Southerners agreed, but lamented that slavery was
a necessary evil. Once set in motion, there was nothing they could do to get rid of it. Of
course, a Southern band of politicians felt the matter was a states rights issue, and that
Missouri should choose her own course. Members of the Deep South slaveocracy made
the case that slavery was a benevolent institution. They claimed that Southern treatment
of slaves was merciful, that free blacks were not welcome in the US, and that God
condoned their slaveholdings.
318
A group of Southern moderates believed that allowing
slavery to spread would ultimately lead to its demise. The dispersal of slaves would
lessen fear of insurrection, which would lead to Southern-led emancipation. Northern
moderates also emerged. They were particularly fearful of incipient Southern threats at
disunion, and were swayed to compromise if it led to a peaceful Union. Finally,
President Monroe used patronage promises to secure the final necessary Northern
votes.
319
Leonard Richards writes about Henry Meigs, who represented New York City,
had ties to Tammany Hall, and was the nephew of the postmaster general—one of the

317
Mark Graber, Dred Scott and the Problem of Constitutional Evil (Cambridge: Cambridge University
Press, 2006): 125; and Fehrenbacher, Dred Scott, 110.

318
Wilentz, 229-230.

319
Wilentz, 233.

158
most desirable posts in the federal government because of its expansive patronage
powers. Richards writes, “Meigs’s chief concern was federal patronage. He was a
conduit between state politicians who sought federal patronage and those in Washington
who had it to dispense.”
320

Table 22. Factions in Congress.
Group Belief Example
Northern Federalists Anti-slave stance on
Missouri could bring them
back to power
Rufus King
321

Southern Democratic-
Republicans
Holding off Federalist
challenge was key
The retired Thomas
Jefferson initially saw the
issue as an attempt by
“Hartford convention men”
to resurrect their party.
322

Northern Republicans Slavery as immoral Timothy Fuller—“the
intolerable evil and the
crying enormity of
slavery.”
323

Old Enlightened
Southerners
Slavery as immoral, but
impossible to extinguish
Robert Reid (GA)—“I
would hail that day [of
emancipation]…But this is
a dream.”
324

Southern States Righters State should choose for
itself to be free or slave

320
Richards, 83.

321
Graber notes “Rufus King thought Missouri might provide a rallying point to break Jeffersonian strength
in the North. Both he and other anti-Missouri Northerners regarded the central issue in the conflict as the
balance of power in the Union, ‘whether “Virginian” rule should be perpetrated, or the balance of power be
righted in favor of the free states.’” See Graber, Dred Scott, 126. Wilentz writes, “The issue, for King, was
not chiefly moral, at least not in his early speeches on the matter. Asked by a Southerner, at one point
during the crisis about his views on slavery, he replied that he was only imperfectly informed on the
subject, and was interested in it only as it had a bearing on ‘great political interests’…In his early
pronouncements on Missouri, the embers of Northern Federalism flared one last time.” See Wilentz, 224.

322
Wilentz, 224. Jefferson later came out against the Missouri Compromise, which struck him like a “fire
bell in the night.”

323
Wilentz, 226.

324
Fehrenbacher, Dred Scott, 107.

159
Table 22, Continued.
Southern Slaveocracy Slavery as a good William Smith (SC)—“The
whole commerce between
master and slave is
patriarchal.”
325

Southern Moderates Dispersal of slaves would
lead to Southern-led
emancipation
John Tyler (TN)—Adding
Missouri as a slave state
would “ameliorate the
condition of the slave…and
add much to the prospect of
emancipation.”
326

Northern Moderates Willing to compromise to
prevent secession
Charles Kinsey (NJ)—
Winning the debate should
not come “at the hazard of
the Union.”
327

Northerners Bought with
Patronage
Willing to compromise for
executive patronage
Henry Meigs—New York
City Representative and
part of Tammany Hall
leadership

Again, in the end, it really did come down to the North versus the South. There
might have been different motivations behind the votes, but this was obviously a
sectional issue. The South overwhelmingly voted in favor of Missouri; the North,
overwhelmingly against it. It only passed because a few Northerners switched their
votes—probably because of executive bribes or fear of Southern disunion.
In the 1978 Fleming Lectures, Fehrenbacher commented, “The Missouri
Compromise of 1820 was, in behavioral terms, no compromise at all, but essentially a
caving-in of the House’s slender antislavery majority that had managed to block passage
of the Missouri bill for more than a year. Southerners, in contrast, never failed to present

325
Wilentz, 230.

326
Wilentz, 229.

327
Fehrenbacher, Dred Scott, 107. See also, Graber, Dred Scott, 125: “Prominent New Yorkers warned
that efforts to ban slavery in the West would ‘terminate in a severance of empire.’”

160
a solid front where Missouri was concerned.”
328
If the historic transaction was termed a
“compromise,” then why would Southerners be so ready to pass it while Northerners
seemed weary? Put differently, does the voting record indicate that Southerners might
have gotten the better bargain? If examined through contemporaneous lenses, the answer
is pretty clear: the South came out on top. In the first place, the only thing she really
gave up was Maine’s admission as a free state. Although 2 more free Senators were
added, it did not cut off previously open avenues of slavery because Maine already
operated under Massachusetts’s free laws. In addition, the Maine concession was needed
to keep the sectional balance after Missouri entered as a slave state. There was no way
the Compromise would pass without each section maintaining an equal number of
Senators.
Even though a majority of the Louisiana Territory lie above 36° 30!, the line was
a good deal for the South. For starters, though it seemed like a concrete horizontal line,
above which slavery could not exist, Missouri entered the Union as a slave state, even
though it lie completely above the line. So 36° 30! started with an exception, not to
mention, one that incorporated a relatively large geographic state. Under these
circumstances, Missouri-for-Maine was more than fair for the South. Additionally, most
of the Louisiana Territory designated as free was thought to be useless. It was part of the
Great American Desert, a region only useful for stashing away Indians. Despite its
smaller acreage, Congressmen from both sections believed that the sub-36° 30! region
would fashion more states. In addition, there was a belief at the time that slaveholders

328
Don E. Fehrenbacher, The South and Three Sectional Crises (Baton Rouge, LA: Louisiana State
University Press, 1980): 17.

161
traveled faster, settled easier, and organized quicker. Given time, the South would take
over the majority in the Senate. Finally, there might have been some miscommunication
on the wording of the 36° 30! provision. Although slavery would be “forever forbidden,”
Southerners believed that that statement only applied to the territorial stage. Upon
application for statehood, a territory could still come into the Union as a slave state.
329

Given all these considerations, it’s no wonder Graber says, “Many Southern
representatives perceived the Missouri Compromise as a boon for slave states.”
330

Table 23. Missouri Compromise.
Provision Northern Take Southern Take
36° 30! line Would create more slave
states
331

Would create more slave
states; land above line was
uninhabitable
332

Missouri as slave state Strongly against—went
against Tallmadge
Amendment
Very advantageous—
Missouri lie above 36° 30!
and was a large state
Maine as free state Necessary to keep Senate’s
balance
Necessary, but not as
important to the North as
securing Missouri as a slave
state was to the South

Despite leftover Federalists’s wishes, the Missouri controversy failed to produce a
sectional Northern party. Likewise, hardline slaveholders could not fuse all elements of
the South into a single political band. This was, after all, the Era of Good Feelings. With

329
Fehrenbacher believes these interpretations were genuine. See Dred Scott, 110. I think there might be
more at play. Still, it is difficult to tell whether these were sincere beliefs on the wording of the Missouri
Compromise line, or whether this was an example of Southern subterfuge.

330
Graber, Dred Scott, 124.

331
Graber notes that Rufus King thought that it would produce 5 slave and 1 free state. See Dred Scott,
124.

332
Graber cites Charles Pinckney of South Carolina, who believed that up to 8 states would come from the
sub-36° 30! line. See Dred Scott, 124.

162
the Federalists secluded in parts of New England, the Democratic-Republicans had no
real competition. Missouri did not realign American politics. The dominant party stayed
in power, and compromisers sealed any possible cracks in the coalition. Still, the effects
Missouri had on rising levels of sectionalism and on the historical slavery debate cannot
be underestimated. Although Northern votes in favor of the Compromise were key, a
majority of those Congressmen lost their re-election bids. In the South, two-thirds of
those who voted against the 36° 30! line were re-elected; three-fifths who voted for it lost
their seats.
333
In sum, the voters rewarded politicians who were completely unwilling to
deal with their sectional counterparts. Although the nation had fought off its first slavery
crisis, it had created a false impression of unity, which took “shrewd political leaders…to
revive interparty competition to preclude future sectional conflicts.”
334
For the next
quarter century, the United States government pretty much avoided slavery. By the mid-
1840s, national leaders could not longer avoid the issue.
Polk’s Land Grabs
The first real darkhorse candidate to attain the White House, James K. Polk
became president by campaigning on expansion. He pledged to annex the sizable Texas
region and add all the land in the Oregon Territory. Compromising on some Manifest
Destiny promises, Polk still added more land to the US than Jefferson had in the
Louisiana Purchase.

333
Wilentz, 237.
334
Holt, 7.

163
Table 24. Polk’s land grabs.

The history of Polk’s presidency is both fascinating and detailed. His foreign
policy had numerous linkages to his domestic policy. His coalition’s bisectional
commitments began to manifest itself after more than a decade of avoidance. It started,
of course, with his election, whereby he had to deliver on the Texas and Oregon
promises. The annexation of Texas ultimately led to the Mexican-American War, which
brought even more land into the Union, but created serious rifts in the regime. This
section closes with a segment on the Clayton Compromise, an early measure designed to
place decision-making authority on slavery into the hands of the Supreme Court.
Texas
Since the formation of the Party, Democrats had long wanted to add Texas to the
United States. Enticed by generous land grants from the Mexican government in the
1820s, American settlers immigrated to Texas. Most were Southerners, who took their
slaves, keeping them in Texas even after Mexico formally abolished slavery in 1829. In
1836, Texas won a war for independence, declared itself the Lone Star Republic, and
requested annexation to the US. Mexico disputed Texas’s independence, so any move by
Louisiana Purchase Polk’s Land Grabs
What Purchase of Louisiana
Territory from France
Texas, Oregon Territory, Mexican
Cession
Square Miles
Added
828,800 1.2 million
States later added Louisiana, Arkansas,
Oklahoma, Missouri, Kansas,
Iowa, Nebraska, South
Dakota; and parts of: Texas,
New Mexico, Colorado,
Wyoming, Minnesota, North
Dakota, Montana
Oregon, Idaho, Washington,
Arizona, California, Nevada, Utah;
and parts of: Montana, Wyoming,
Texas, New Mexico, Colorado

164
the federal government to add Texas was likely to have international consequences.
President Andrew Jackson understood the situation. Despite wanting to add the region to
the Union—as well as gaining formal recognition of the Texas Republic—Jackson
reluctantly stayed away from the issue.
335
Getting involved with Texas meant risking a
war with Mexico, a conflict that both Jackson and Van Buren wanted to avoid.
336
In
addition, adding Texas would cut across the trans-sectional nature of the parties.
Northern Democrats would be forced to vote against either their free constituents or their
slaveholding Southern colleagues. For the same reason, the Whigs wanted to avoid
annexation.
337

Each cohort of politicians held different ideological commitments on the issue of
Texas, and less clearly, slavery. Northern Whigs came out against annexation for a few
reasons. For “Conscience Whigs” opposed to human bondage, Texas would add more
slave territory to the Union. Secondly, they did not want to expand, believing that such
additions were unnecessary, and even dangerous to the domestic and international peace.
Lastly, some Northerners believed that Texas annexation was a Southern attempt to
augment the South’s control over the federal government. Standing against Texas was a
sign of standing up to Dixie.

Southern Whigs also had numerous reasons for opposing
annexation. Like their Northern partners, Southern Whigs thought annexation would
wear down much of the sectional tranquility of the period. Clay believed this, as well as
the fact that it would inevitably produce a war with Mexico—an unpleasant

335
Wilentz, 435.

336
Wilentz, 560.

337
Fehrenbacher, Slaveholding Republic, 266.

165
consequence.
338
Additionally, Southern Whigs were against adding Texas because they
believed that diffusion of slaves throughout the Union was dangerous. It led to ratios
where blacks might even outnumber whites: a formula for slave insurrection.
339

Southern Democrats were pro-slavery expansionists, wanting the spread the
peculiar institution to as many places as possible. Northern Democrats themselves were
split into three groups. Van Burenite Democrats (mostly New Yorkers) opposed
annexation because they understood the sectional pressure it put on the country and—
perhaps more importantly—on the party. Other Northern Democrats embraced the
Manifest Destiny calls of the 1840s and warmly welcomed annexation. Finally, though a
small contingent, anti-slavery Democrats came out against adding another slave state to
the Union. Interestingly, Van Buren himself was not really a member of the first group.
Instead, he aligned with the anti-slavery faction. President Tyler even tried to get him off
the issue by offering him a seat on the Supreme Court, which Van Buren refused.
Table 25. Positions on annexation of Texas.
Democrat Whig
North •Van Burenites—against
annexation because it would lead to
sectionalism
•Anti-Slavery—against annexation
because it would lead to slave states
•Manifest Destiny—Expansionists
•Conscience Whigs—moral objection to
adding more slave soil
•Anti-Slave Power—political objection to
adding more slave states
•Anti-expansionists—annexation was bad
policy & unnecessary
South •Pro-slavery expansionists •Anti-expansionists—would lead to
sectionalism
•Anti-war—would lead to war with
Mexico
•Slaveocracy—against annexation because
it would lead to diffusion of blacks

338
Holt, 10.

339
Wilentz, 560-576.

166
The 1840 presidential election produced a winner that seemed quite conscious of
the danger Texas provided. Although William Henry Harrison was a war hero who won
by avoiding taking any real policy stance, he was also a Northerner from Ohio, whose
family had owned slaves. Anti-expansionists themselves, the Whigs probably could have
counted on Harrison to follow through on their ideals. Unfortunately, Harrison died a
month into his term. John Tyler became the first president to assume the office on the
death of his predecessor, gaining the title “His Accidency.”
340
Added to the ticket solely
because he might attract the votes of states-rights Virginians, Tyler was no Whig.
Leonard Richard writes that Tyler “had no use of the nationalistic and pro-business
policies championed by Henry Clay and other Congressional Whigs.”

Tyler was a
Democrat—and a Southern one at that. After vetoing three banks bills on Constitutional
grounds, the Whigs wrote him out of the Party.
341
For the rest of his term, he operated
without any regards to party unity.
His reasons for annexation were twofold. First, we should not overlook Tyler’s
personal beliefs. He was “a pro-slavery extremist,” who was “deeply devoted to the
perpetuation of slavery.” Adding Texas to the Union as a slave state might have been
Tyler’s attempt to exercise his prerogative. Secondly, and very likely, annexation was
used as an electoral ploy. Given his alienation of the Whigs, he gave up on trying to
achieve sectional comity, and instead focused on winning the 1844 presidential election.
Holt believes “Tyler hit upon the annexation of Texas as an issue on which he might win

340
Fehrenbacher, Slaveholding Republic, 266.

341
Richards, 142-144.

167
the presidency in 1844.”
342
He hoped to realign the partisan commitments into sectional
parties; he was “gathering a new political following.” On these pretenses, Tyler fed into
a propaganda campaign that Britain had its eyes on Texas.
343

Started during the Van Buren administration, Texas president Sam Houston
constantly spread rumors that the British were about to take over Texas. Texan ministers
to England made it look as if they were always ready to cut a deal with the British.
Meanwhile, Texan ministers to the US relayed accounts of British wishes for a buffer
against American expansion, a source of cotton, and duty-free entry into North America.
Van Buren ignored the gossip, determined to hold the Northern and Southern elements of
the Democracy together. In 1843, Houston re-engaged the rumor mill. This time, he
spread word that Mexico, which had never admitted Texan independence—had prepared
to retake the floundering Texas. Houston said that the friendly British would help
prevent such an invasion, so long as Texas respect the Crown and free its slaves. This
prospect scared Southerners. A large free territory next to Louisiana and Arkansas would
provide safe haven for fugitive slaves. The Tyler administration threw fuel onto the fire,
telling the public that anti-republicanism British monarchists were bent on destroying the
US; and Texas was all part of the plan. In September, Tyler opened secret talks with
Houston.
Secretary of State Abel Upshur, “a proslavery zealot,” led US negotiations with
Texas. Talks were almost completed when Upshur died in a freak accident. While

342
Holt, 10; and Fehrenbacher, Slaveholding Republic, 266.

343
Fehrenbacher, Dred Scott, 125. Richards notes that Tyler might have hoped to form a pro-Texas third
party, but also that getting the Democratic nomination was a higher prize. See also Richards, 142-144.

168
attending a ceremonial function on the USS Princeton, a large cannon (dubbed the
“Peacemaker”) malfunctioned, killing Upshur. The administration turned to John C.
Calhoun to complete the US-Texas talks. Wilentz writes, “That sealed the link between
slavery and Texas.” It probably also provides a road sign for Tyler’s attempt to create a
Southern-based third party. Indeed, a Southern party had been Calhoun’s long-standing
vision. In 1844, Calhoun completed the treaty and sent it to the Senate, along with a
letter to Britain’s minister to Washington. The letter denounced British interference with
Texas and castigated the empire for supporting abolition. Calhoun described slavery as a
system that allowed blacks to maximize their happiness. Hereafter, the annexation of
Texas became a proslavery measure. Calhoun’s dream of a sectional party—with actual
clout—was probably closer to realization in April 1844 than at any other time.
By this time, of course, the nation and parties were preparing for a wide-open
presidential contest. Annexation had suddenly become the foremost issue. Henry Clay’s
stance against it aligned perfectly with his fellow Whigs. It should come as no surprise
that “the Whig convention in Baltimore, which assembled May 1, as a thoroughly joyous
and exciting affair. The delegates unanimously approved Clay’s nomination.” Four
weeks later, the Democratic convention met in the same city. The meeting was anything
but “thoroughly joyous.”
Coming into the convention, Martin Van Buren had to be considered the
frontrunner. He had already served as president, directed the party for more than a
decade, and had the credentials to win the election. Van Buren initially came out against
annexation because he understood the sectional cleavages it created. The consummate

169
politician, though, Van Buren sensed that opposition might cost him the 1844
nomination. Thus, he penned a letter saying that he would annex Texas if the public
showed a strong preference for doing so. Unfortunately for Van Buren, the takeaway
message for Southerners from the letter was that the former president was strongly anti-
Texas. It did not help that Van Buren had criticized Tyler for secret negotiations, or that
he believed it would lead to war with Mexico.

Put simply, Van Buren’s opposition to
annexation “raised a storm of protest among Democrats, especially in the Southern and
Western states.” Still, heading into Baltimore, Van Buren could count on a majority of
delegates to support his candidacy. Once reaching the convention, though, Southerners
pushed through a requirement that the candidate now receive two-thirds majority of the
delegation. Seven inconclusive ballots passed. With each one, more and more Van
Buren supporters defected. On the eighth ballot, Polk’s name came up. Samuel Young,
New York’s secretary of state and lifetime Van Burenite, then denounced the
supermajority requirement as an unjust political tactic. When Southern delegates could
not shout him down, fistfights broke out on the floor. Oddly, soon thereafter, Polk
received a unanimous nomination.
344

Between the punches and the final vote, New Yorkers had left to caucus.
Although they returned in full support of Polk, Van Burenite Senators did not assent to
annexation of Texas. Thus, when the treaty Calhoun had negotiated came before the
upper house, they voted against it. On June 8, 1844, 8 Van Burenite Senators joined all
but 2 Whigs in overwhelmingly defeating the treaty, 35-16. The issue was set aside until

344
Richards, 142-144; and Wilentz, 560-576.

170
after the November elections, where Democrats made spectacular gains in the Senate,
turning their six-seat minority into a twelve-seat majority. Still, Tyler did not have the
support needed to gain the two-thirds of the Senate, as required by the Constitution for
ratification of treaties.
In terms of the White House, Polk barely edged Clay. Fehrenbacher writes,
“Hostility to annexation…may very well have made the difference in Clay’s narrow
defeat.” Tyler used Polk’s victory to declare a public mandate that the US annex Texas.

He then turned to a shady strategy. Although Calhoun had explicitly negotiated a treaty
with Texas, Tyler called upon Congress to pass a joint resolution embodying the
language of the deal. This move would avoid the two-thirds requirement from the
Senate; instead, replacing it with simple majorities from the House of Representatives
and Senate, which were much more attainable for Tyler. Ultimately, the joint resolution
plan worked for Tyler, but only after some unlikely factions supported annexation.
Milton Brown, a Tennessee Whig, offered the House a resolution for Texas
annexation. Interestingly, whereas the Tyler-Texas treaty incorporated Texas via
territorial status, Brown’s bill fast-tracked Texas to statehood. In addition, because of
conflicting claims, it called for the US to determine the proper boundary between Texas
and Mexico. Altogether, Brown’s proposal could add up to 5 slave states from Texas.
345

Northern Whigs, of course, voted against it. Southern Whigs supported it, either as lame
ducks who had been voted out because of the issue, or as survivors of Southern Democrat
attacks claiming the Whigs were not interested in Texas. Southern Democrats jumped at

345
See Holt, 12-15; and Richards 146-147.

171
the opportunity to ally with their Whig counterparts. Northern Democrats, meanwhile,
faced a dilemma. Richards describes it:
If they backed their Southern colleagues, they were certain to be denounced as
backing a Slave Power conspiracy. If they broke with the Southern Democrats,
they were equally certain to be denounced for betraying the party’s campaign
promises. Hadn’t the party agreed to a platform calling for the annexation of
Texas ‘at the earliest practicable moment?’

In the end, most Northern Democrats went along with the South. The Van Burenite
Democrats dissented, but the bill still passed, 120-98.
Table 26. House vote on Texas.
Group Yea Nay
Northern Democrats 53 28
Southern Democrats 57 0
Total 110 28
Northern Whigs 1 52
Southern Whigs 9 18
Total 10 70
TOTAL 120 98

Passage in the Senate proved more difficult. Ironically, though, the same Van
Burenite Democrats who had tried to defeat the measure in the House ended up saving it.
Thomas Hart Benton, an anti-slavery Democrat from Missouri, offered a plan whereby
the Senate would allow the incoming president to choose from two options. Polk could
accept the bill that the House had passed, or he could negotiate new terms of annexation
with Texas. Enough Northern Democrats jumped on board to pass the bill, 27-25, but
only because Polk had secretly, yet clearly, promised Benton that he would renegotiate
the terms of annexation. The House assented to the Senate bill.

172
Table 27. Senate vote on Texas
Group Yea Nay
Northern Democrats 13 1
Southern Democrats 11 0
Total 24 1
Northern Whigs 1 13
Southern Whigs 2 11
Total 3 23
TOTAL 27 25

The outgoing John Tyler signed the bill. Over the next two days, Calhoun
convinced Tyler that delay on annexation would prove fatal to the matter. On his last day
in office, Tyler dispatched an envoy to Texas to announce that the US would annex Texas
according the Brown proposal. Although the Benton bill had been meant for Polk, Tyler
had used it to exercise his own prerogative. Still, Benton was probably not terribly
disappointed. He still had Polk’s guarantee to renegotiate the Tyler-Texas deal. All Polk
had to do was recall the emissary. Instead, immediately after Polk took office, he
endorsed Tyler’s actions.

Van Burenite Democrats were distraught, not to mention livid.
They charged Polk with breaking his promise—a promise that had led to passage of the
bill in the first place. Polk responded, “If any such pledges were made, it was in a total
misconception of what I had said or meant.”
346
In July 1845, Texas accepted annexation;
in December, it was admitted to the Union as a slave state.
Mexican-American War
Throughout the Texas controversy, Henry Clay warned that annexing the area
would lead directly to war with Mexico. As president, John Quincy Adams had actually
attempted to purchase Texas from Mexico. Years later, as a Representative, Adams

346
Quoted in Wilentz, 577-578; Holt, 11; Fehrenbacher, Dred Scott, 125-126; and Richards, 146-147.

173
believed that adding Texas would inevitably lead to war.

Because Mexico never
recognized Texan independence, American annexation would mean a pair of competing
claims to the same land. Moreover, even though Polk had outright lied to Benton, his
more egregious action (as far as Van Burenites were concerned) was to declare that the
Texas border extended to the Rio Grande, not the Nueces River. Additionally, Polk
announced that he would deploy American military forces to defend that boundary.
347

The extent of Polk’s intentions is probably easy enough to decipher. He wanted
as much of Texas as he could get; therefore, he declared the Rio Grande to be the true
border. Likewise, he wanted as much of Mexico as he could get. He first tried to buy
California from Mexico, who turned down the deal. With no way of completing a
peaceful transaction between the two nations, Polk’s only real alternative was to take the
land from Mexico. Publicly, the most just way of accomplishing this was to be drawn
into a war, win it, and claim portions of Mexico as indemnity for war expenses. The
tricky part would be getting Mexico to draw the US into a war. Ordering troops to west
Texas, Polk used the border dispute to goad Mexico. After a month of inaction, US
forces were moved further west, to the east banks of the Rio Grande, where they pointed
cannons at Mexican establishments. Still, 6 months passed before anything happened.
But on May 9, 1846, word reached Washington that a skirmish had lead to 16 American
casualties. Finally, Polk had his excuse. After a curtailed debate in Congress, the

347
See Holt, 10, 12-15; Wilentz, 560-576; and Fehrenbacher, Dred Scott, 124-125.

174
Legislature approved a war bill—not a formal declaration, but recognition that Mexico
had initiated a state of war.
348

Pretty much correct, Polk anticipated a quick and easy victory, and on August 8,
1846, he asked Congress for $2 million to pay Mexico for “any cession of territory”
349

and for “settling all our difficulties with the Mexican Government…[in the] adjustment
of the boundary between the two Republics.” Thus, only 3 months into the war, Polk had
essentially announced that the Mexican-American War was about gaining more land for
the Union. Skowronek notes, “This proposal to pay for Mexican land was Polk’s first
unmistakable declaration that the United States was engaged in—perhaps had
consciously provoked—a war for territorial aggrandizement in the Southwest.”
350

Congress gave Polk the money, but only after Northern Democrats grudgingly voted for
it. To entice their votes, Polk had promised them that the war would not lead to the
acquisition of any more land from Mexico. Once again, Young Hickory’s pledge was
duplicitous, and Polk added the Mexican Cession, a huge area of land.
Wilmot Proviso
In the early stages of the Mexican-American controversy, Van Buren had written
to George Bancroft, Polk’s Secretary of the Navy, that the administration should be
careful about the partisan and sectional implications of a war with Mexico. Van Buren
warned, “the opposition shall be able to charge us, with plausibility, if not truth, that it is
waged for the extension of slavery.”

In the aftermath of such a conflict, Northern

348
Wilentz, 581-582.

349
Quoted in Holt, 19.

350
Skowronek, Politics Presidents Make, 171-173.

175
Democrats would face the same dilemma they faced during the Brown bill annexing
Texas. Either they would have to betray their party, or they would have to betray their
section and their constituents. Van Buren predicted that such a war would lead
Democrats “to the sad alternative of turning their backs upon their friends, or of
encountering political suicide with their eyes open.”
351
His forecast became reality when
David Wilmot attached an amendment to Polk’s $2 million request, stipulating that
slavery be banned from every acre of the Mexican Cession.
The origins of the Wilmot Proviso have more to do with Northern Democratic
frustration with Southern dominance than with genuine anti-slavery sentiments. In
addition, the Proviso was not sympathetic to Mexican claims. It called for the admission
of the Cession into the United States. And its originators and most ardent supporters
were Northern Democrats, whose party stood as the bastion of Manifest Destiny ideals.
The Proviso was “plainly an expansionist document, acknowledging the likelihood and
propriety of such conquest.”
352
But those Northern Democrats were rightfully upset with
a number of federal transactions. The Proviso is best seen as a power play towards
Southern politicians and a gesture towards Northern constituents. To the former,
Northern Democrats displayed that Dixie was not the only voice in national politics; to
the latter, they expressed that the Democracy could represent Northern opinion better
than the Whig Party.

351
Quoted in Richards, 149.

352
Fehrenbacher, Dred Scott, 129.

176
I believe the main reason for the Proviso was that Northern Democrats sincerely
wanted to add new, free land to the Union. At the beginning of the Mexican-American
War, they had been fearful that such acquisitions would lead to more slave states, and
that their constituents would turn to the Whigs. Northern Democrats reluctantly
supported the war only after the president reassured them that he had no intentions of
adding more land as a result of the war.

The $2 million request shot down that promise.
Granted, by the end of the war, Northern Democrats had harnessed the Manifest Destiny
theme; but they wanted to add free lands. Thus, they came up with the Wilmot Proviso,
which allowed them to incorporate the Mexican Cession into the Union, but also added it
as free territory. It won over anti-slavery and the expansionist Northerners. Intuitively, it
would make sense to find a solution that allowed them to still be faithful to the party (i.e.,
expansionist), but also adhere to sectional commitments (i.e., free labor). The Proviso
was a win-win formula.
A particularly egregious transgression had to do with Oregon. Polk gained the
Democratic nomination mainly because he supported the annexation of Texas. Adding
the Oregon Territory and providing Americans exclusive rights to it also proved
important in his presidential bid. Oregon balanced Texas; and the dual promise gave
something for everyone in 1844.
353
Before the federal government took over the Oregon
Territory (the modern states of Oregon, Washington, and Idaho), it was open to joint
occupation by Americans and the British. Most Americans moved to the area south of
the Columbia River; most British were located above the river. In their attempted deals

353
Fehrenbacher, Slaveholding Republic, 267.

177
to secure the area, Great Britain used the common settlement pattern as a way to divide
the region. The US government balked at the offer. Polk’s predecessors instead pushed
for the 49° line to be the divider. England would not agree. Even though both countries
wanted a deal, neither could come up with an agreeable line to divide Oregon. When
Polk won the Democratic nomination, his platform called for the “reoccupation of
Oregon.”
354
In addition, he claimed he would get “all of Oregon,” a typical Polkian term,
shrouded in ambiguity.

Northerners interpreted Polk’s pledge as meaning he would
acquire the entire territory. Thus, the slogan “54°40! or fight” emerged, which indicated
they were willing to go to war to secure all of Oregon.
Though Polk never told Northerners, he had no intentions of fighting the British
over the entirety of the Oregon Territory. Like administrations before him, he would be
happy to settle with the British at the 49° mark. Polk himself was especially concerned
with adding ports on the Pacific, and Puget Sound in Washington provided nice
deepwater docking. This became especially true once the US became involved in a war
with Mexico. Skowronek writes, “a war with both Britain and Mexico would risk losing
everything that was now in sight.”
355
The trouble, of course, was getting England to sign
on an agreement making 49° the cutoff line. Led by John C. Calhoun, a Southern peace
movement emerged. With its northern latitude and Oregon’s current closure to slavery, it
was unlikely that the territory would ever be opened to the peculiar institution.
Southerners had no need for “54°40! or fight,” especially if it meant draining precious

354
“1844 Democratic Platform,” The American Presidency Project (1844).

355
Skowronek, Politics Presidents Make, 171-173.

178
resources from their prize—California, Texas, and maybe even New Mexico. Still, the
belligerence of the “54°40! or fight” faction gave Polk a powerful bargaining chip. He
followed through by maintaining that he would go to war if necessary, but again offering
the British the old 49° deal. The British again rejected the offer. Insulted, Polk withdrew
the offer, and suddenly demanded all of Oregon. Northern Congressmen clamored for
war. Polk established a series of forts along the Oregon Trail, which ended the stalemate.
In June 1846, only a month after engaging Mexico, England and the US agreed on a
border at 49°.
356
Skowronek sums it up, “a northern war had been sacrificed for a
southern war.”
357

The problem with the Oregon settlement was that those who stood to gain the
most from it were pleased the least. Polk’s posturing had gained the 49° line that the
United States had long bargained for; but his promise was the entire territory, and 49°
was not good enough for Northerners. It was highly unlikely that Polk would have ever
obtained a deal that gave the US the entire area. He did well to secure Washington and
the port at Puget Sound. Unfortunately, he needed the vehement cries of incensed
Congressmen to drive the hard bargain. To make the outbursts genuine, Polk never
informed Northern politicians that they were all part of his bluff. On the flip side,
Southerners came out of it pretty well off. Land had been added up north, but not at the
expense of acquiring the Mexican Cession. Anyone in the 19
th
century would have
agreed that the Southwest was a more valuable prize than the Northwest. Put simply,

356
Wilentz, 580.

357
Skowronek, Politics Presidents Make, 171-173.

179
towards the end of Polk’s presidency, the South had more to look forward to than the
North.
This point is further magnified when considering it in tandem with Texas. In fact,
Fehrenbacher says, “The Proviso controversy was a logical extension of the recent
struggle over the annexation of Texas.”
358
Northern Democrats had provided the last
necessary votes in the House of Representatives to secure annexation. In the Senate, they
again saved the joint resolution from failure by barely passing the bill, only to be taken
advantage of by John Tyler, and then lied to by James K. Polk. In addition, Polk had
declared the Rio Grande to be the proper border, a Texas much larger than the one
supposedly bound by the Nueces River. Still, loyal to the party, Northern Democrats did
not raise any complaints. Instead, they faithfully stood behind Southern Democrats as the
government annexed a very expansive Texas. In exchange, they expected those
Southerners to back up their claims to the entire Oregon Territory. Instead, Polk
compromised. “They were infuriated at Polk, who had misled them,” Michael Holt
writes, “and [at] Southern Democrats, who refused to fight for all of Oregon after they
had gone for all of Texas.”
A few domestic issues incensed Northern Democrats. Polk had promised land
reform, but failed to deliver. During the presidential campaign, he had written a
somewhat ambiguous statement that led Northerners to believe he would keep a high
tariff. Privately, though, he assured Southerners that he would immediately lower the
tariff after elected. Holt remarks, “[Northern] Democrats felt egregiously betrayed by a

358
Fehrenbacher, Dred Scott, 128.

180
slaveholding president intent on helping the South at their expense.”
359
Wilentz echoes
the comment on a separate issue: “Polk’s veto of a major river and harbor improvement
bill in August 1846 convinced Northwestern Democrats that the South had the president
in its pocket.”
360
Keep in mind, this was the time when Northern Democratic resistance
to the American System was beginning to wane.

Still, Polk’s negative reflected the strict
constructionism so beloved by the South.
Lastly, Northerners—especially New Yorkers—were upset because Polk had
refused to recognize the source of his electoral victory. New York had gone to Polk in
November, but only by the slimmest of margins. The Empire State had given him the
majority in the Electoral College. The New York delegation of the Democratic Party—
and especially the Van Burenites—had been key in winning the presidency. They
believed that one of their men was entitled to one of the key Cabinet posts, either
Secretary of State or Secretary of the Treasury. Skowronek writes, “This enormous debt
invoked a genuine sense of obligation from the victor.”
361
Polk initially offered the
Treasury Department to Silas Wright, Van Buren’s closest political ally. Recently
elected to the New York governorship, Wright unsurprisingly turned down the offer.
Still aware that he owed something to New York, Polk asked Van Buren for
recommendations. In the end, a series of calculated and deceptive maneuvers allowed
Polk to completely shut New York out of the Cabinet, let alone its top spots. Skowronek

359
Holt, 24; Skowronek, Politics Presidents Make, 172.

360
Wilentz, 593.

361
Skowronek, Politics Presidents Make, 162.

181
notes, “In the end, Polk got what he wanted and needed to be a leader in his own right—
that is, a Cabinet of new men unreservedly committed to Texas annexation.”
362

It was only after all these transgressions did the North support the Wilmot
Proviso. The North had lost much of Oregon, as well as top positions in the Executive.
Meanwhile, the South got the bigger version of Texas, a low tariff, and an internal
improvement veto. With California and New Mexico ready to become part of the US,
“Southerners expected to obtain still more slave territory from the Mexican adventure.”
363

Polk himself had flat-out lied to the North too many times. The deceit, Southern bias,
and future outlook forced Northern Democrats to do something; otherwise, their
constituents would charge them with incessantly caving in to Southern demands. Gideon
Welles, a Democrat from Connecticut, put it best, “The time has come…when the
Northern Democracy should make a stand.”
364

Table 28. Polk’s promises.
Issue Polk’s Promise Polk’s Actions
Oregon 54°40! or fight 49°
Texas Renegotiate treaty Accepted Tyler’s actions & Rio
Grande
Mexican Cession No land as a result of
Mexican-American War
Mexican Cession
Tariff Would keep duties at pre-
election rates
Lowered duties
Land Reform Would legislate reform Never followed through on land
reform
Patronage Would appoint a New
Yorker to a top position
Schemed his way out of having a
New Yorker in the Cabinet

362
Skowronek, 167. Skowronek’s description of Polk’s Cabinet formation is fascinating. See Skowronek,
162-168.

363
Fehrenbacher, Dred Scott, 129-130.

364
Quoted in Wilentz, 593-594.

182
In this environment, David Wilmot introduced the Proviso. The significant
portion read, “As an express and fundamental condition to the acquisition of any territory
from the Republic of Mexico…neither slavery nor involuntary servitude shall ever exist
in any part of said territory.”
365
Whether or not Wilmot himself conjured up the whole
idea is slightly open to debate. After the Proviso caught on, he claimed it was his idea.
Most historians believe that a group of Northern Democrats met before Polk’s bill came
up, drafted the Proviso, and agreed that whomever got the floor first should propose it.
366

Richards says that the group looked to Wilmot, an obscure Pennsylvania Representative
who had been friendly to the South. He was one of the key members that had voted in
favor of annexing Texas. His previous record did not threaten the South, and therefore,
he could easily obtain the floor. Regardless of the plan, Wilentz notes that these
Democrats were junior members of Congress, most of whom were a generation removed
from Van Buren, and too young to remember the Missouri Compromise struggle.
Wilentz reveals that they were less beholden to the intersectional rules that both the
Northern and Southern Democracy played by.
367

The Proviso was an immediate hit in the North. Fehrenbacher notes that all types
of Northerners voted for it: pro-49° compromisers, anti-internal improvement men,
Democrats, and Whigs. Even anti-expansionists put anti-slavery sentiments first in
voting for the Proviso. Unlike previous political disagreements—like Oregon, Missouri,
and Arkansas—Northerners would not compromise on the Proviso. Eventually, all but

365
“Wilmot Proviso” Blue and Gray Trail (1846).

366
For example, see Holt, 20; and Wilentz, 594-601.

367
Wilentz, 594-601.

183
one northern state legislature passed resolutions instructing their Senators to vote for the
Proviso. The Northern press and northern party conventions praised it. The actual words
behind the Proviso were threatening to the South, yet she had faced similar anti-slavery
opposition for decades. It was the popular and nearly unanimous Northern support that
scared the South. Southerners threatened that should the Proviso pass, they would secede
from the Union. “The view that the Southern states must secede if the Proviso should be
enacted was probably more widespread in the South than the view in 1860 that the
election of Lincoln would make secession necessary,” Richards believes.
368

In August 1846, the House of Representatives granted Polk the $2 million he
requested. They also attached the Proviso to the bill. The Senate refused to pass the
Proviso. This was the first in a predictable pattern. The lower house, staffed with a
Northern majority, would adopt the Proviso. The Senate, then, split equally, would vote
it down after a few Northern Democrats always voted with the South. On March 3, 1847,
last day of the 29
th
Congress, the House debated an already-Senate-approved $3 million
bill without the Proviso. Northerners tried to add the rider, in fact, Wilmot himself made
the motion. Ultimately, it failed. Polk got 6 Northerners to switch their votes on the
Proviso, and 6 more to absent themselves. Of the 22 Northern Democrats who voted for
the Senate bill, almost all of them were no-name Congressmen who never had received
much attention. More strikingly, all but 4 were lame ducks, serving their last day in the
House of Representatives.
369

368
Fehrenbacher, Dred Scott, 130; Holt, 20; and Richards, 150-154.
369
Holt, 20; Richards, 150-154.

184
Ultimately, the Proviso failed. However, the South had not yet achieved its
endgame. Securing the Sun Belt as slave territory, adding more slave states to the Union,
and overtaking the Senate were the South’s fundamental goals. With passage of the
March 3 appropriation bill, the South had taken two necessary steps towards achieving its
endgame. She defeated the Proviso, and also set in motion the funds needed for the
Mexican Cession. With its cycle expired, the 29
th
Congress left admission of new
territory and new states to a new batch of legislators. Despite writing the $3 million
check, the North/South split still remained. In fact, it probably worsened, as “aggressive
slavemasters stole the heart and soul of the Democratic Party.”
370
Skowronek puts it
more mildly, but still captures the historical moment: “There was no recovery from the
sectarian turn of the mid-1840s.”
371
With such a polarized sections and a closely divided
federal government, how would the regime solve the slavery issue? Could anyone in the
government really be counted on to broker a deal? Where could they turn?
Clayton Compromise
When annexed, Texas had gained entry into the Union immediately as a state. All
the other land out west, though, had not yet been fully incorporated. The discussion in
1848 over what to do with Oregon displayed the different stances taken on what to do
with slavery in the West. Popular sovereignty, whereby residents of a territory or state
would determine slave status for themselves, was introduced. Of course, there were the
hardline Northern and Southern views. The Northern one was the abolitionist’s

370
Richards, 159.

371
Skowronek, Politics Presidents Make 176.

185
argument—that slavery was an evil institution and should not be allowed to exist
anywhere. There were some abolitionists in Congress, but most anti-slavery
Congressmen resembled Abraham Lincoln rather than William Lloyd Garrison. That is,
many of them were content to leave slavery alone where it existed; however, they
believed its extension was worth the fight. Appropriately, Lincoln served his only two
years in the House during the 30
th
Congress (1847-1849). On the polar opposite, some
Southerners believed that the Constitution protected the right to own and secure slaves.
Extending the Missouri Compromise line to the Pacific was the preferred
Southern option. President Polk supported such a plan; his 1848 State of the Union
reads, “This is the middle ground of compromise, upon which the different sections of the
Union may meet, as they have heretofore met. If this be done…people of every section
of the country…would cheerfully and patriotically acquiesce in it.”
372
Though it seems
somewhat preposterous—even to those in the 19
th
century—that the nation could
continue half slave and half free, this was a pretty popular proposal. It was also
moderate. Keep in mind, this was an age in which some competitive Southerners drove
so hard against each other that they would declare slavery a benevolent institution, for
master and slave. That the slaveocracy of the South, in 1848, might conform to ban
slavery north of 36°30! was a large step towards compromise. Many Southerners were
especially fond of the proposal, and became frustrated when the Northern-dominated

372
James K. Polk, “1848 State of the Union Address” The American Presidency Project (5 December
1848).

186
House rejected the plan. Representative Shelton Leake commented that the House had
turned into a “magnificent abolition society.”
373

Ultimately, Oregon entered the Union under the same terms provided in the
Northwest Ordinance. Slavery was barred in Oregon. The president did not veto the bill,
but signed it only after announcing that all the land concerned in the deal lay above the
Missouri Compromise line. Before the measure passed both chambers, the House and
Senate had a showdown over 36° 30!. Led by Democratic Southerners, the Senate first
passed a measure to extend the line.
Table 29. Extension of 36° 30!
Group Yea Nay
Northern Democrats 6 9
Northern Whigs 2 8
Northern Free Soil 0 1
Total 8 18
Southern Democrats 12 0
Southern Whigs 13 4
Total 25 4
TOTAL 33 22

The House immediately tabled the bill and passed its own anti-slavery one. The
Senate affirmed the House bill, but only after adding an amendment that extended the
Missouri Compromise line. The House didn’t blink, and refused to assent to the Senate’s
rider. Finally, the Senate passed the bill, Polk signed it and added his personal
commentary. Throughout the debate, most politicians had to feel that a deal could not be
struck. The North and South were just too different, and the demands placed upon
Congressmen from the different sections dictated that they could not compromise too
much.

373
Quoted in Fehrenbacher, Dred Scott, 134.

187
Yet, less than 10 days before the House and Senate faced off, a compromise did
actually pass the Senate, and was added to its original bill. Senator John Clayton
recognized that Congress could not get past their respective differences. He offered to
head a committee that would try to come up with a plan that men from both sections
could agree to. He announced that the committee should have four Northerners and four
Southerners, with each party having a pair of representatives for each section. Clayton
that he had been “standing between North and South, and standing ready to conciliate
between both.” The Senate allowed for the committee. Clayton reported its
deliberation’s a week later. The committee talked about extending the Missouri
Compromise line, but they were split 4-4 on the issue. Clayton recounted, “At this stage
of the proceedings, all compromise appeared to be impossible.”
374
Instead, they labored
on, and came up with another idea. They suggested passing an Oregon bill that validated
the provisional government’s anti-slavery laws. Moreover, they recommended passing
laws that forbid New Mexico and California legislatures from dealing with slavery. The
kicker was that special provisions would be made so that the Supreme Court would be
able to hear any suit that challenged these laws.
Clayton effectively proposed transferring the decision, and the authority, to the
Court. The “Clayton Compromise” would have left the status of slavery in Oregon, the
Mexican Cession, and perhaps future lands in the hands of the Court. Clayton himself
believed that “no other mode would be successful in the present Congress.” Because of
the inability of the Legislature to make a decision, his “bill left the entire question…to the

374
Senator John Clayton, 30
th
Congress, 1
st
Session. Congressional Globe, 987-988, 950.

188
Judiciary.” Lest anyone not yet understand that the Clayton Compromise entirely passed
the buck, the Senator elucidated, “There is no great principle sacrificed.” That is,
everyone could vote for the bill, and go to their districts and states and say that they had
passed a bill supposedly in line with their preferences. Finally, Clayton made a sort of
threat, saying, “Any man who desires discord will oppose the bill.”
375
That is, a vote
against the bill amounted to a vote for actions that would ultimately lead to secession. As
Graber notes, the measure passed because “Northern Democrats could accept Southern
pretensions in the territories, so long as they could do so indirectly.”
376
That is, they were
willing to pass a bill that might eventually lead to pro-slavery policies, but they could still
say that they had not voted directly for those policies.
Despite passage, a number of concerns were raised. One Senator was upset that
the committee hadn’t really done anything. Senator Niles “did not expect such a
dodging, such an evasion of the question as was evident in the bill, which has cowardice
stamped on it.”
377
It avoided all controversy: slavery in the Cession, Oregon’s
disposition towards freedom, what to do with the Missouri Compromise line. Northern
Whigs were especially concerned with the silence on the New Mexico-Texas border
dispute. They did not want slavery extending as far west as Santa Fe.
378
Another
complaint was that Congress had dodged its institutional duties. Jacob Miller of New

375
Clayton, 987-988.

376
Graber, Dred Scott, 44.

377
Senator John Niles, 30
th
Congress, 1
st
Session. Congressional Globe, 988.
378
See Mark Joseph Steigmaier, Texas, New Mexico, and the Compromise of 1850: Boundary Dispute and
Sectional Crisis (Kent, OH: Kent State University Press, 1996): 30.

189
Jersey did not want to evade the question because it was a political one. “The proper way
to settle the question,” Miller announced, “was by the legislative authority.”
379
Samuel
Phelps disagreed, believing that the extension of slavery was a Constitutional issue, and
the Court was the proper authority. He explained that Congress should not interfere with
the subject because “the Constitutionality of our laws must be decided elsewhere.”
380

Senators from both sections had deep reservations as to what they thought the
Supreme Court would actually do with that kind of power. Northerners had right to fear
the Taney Court. Southerners held a majority of seats on the Bench. Free Soiler John
Hale “professed to have no confidence in the Supreme Court, as now constituted, and was
unwilling that the Court should decide the question.”
381
Hannibal Hamlin of Maine said
the bill guaranteed and perpetuated slavery in the territories.
382
Thomas Corwin could
smell a conspiracy based on John C. Calhoun’s support for the Clayton Compromise. A
member of the eight-man committee, Calhoun voted for the measure. Corwin questioned
his motives. If Calhoun believed Congress could not touch slavery, then why all of a
sudden would he be willing to risk Supreme Court intervention?
383
Meanwhile, some
Southerners were also weary of Clayton’s proposal because they worried that, as a matter
of law, Northerners had a stronger case.
384

379
Senator Jacob Miller, 30
th
Congress, 1
st
Session. Congressional Globe, 993.

380
Senator Samuel Phelps, 30
th
Congress, 1
st
Session. Congressional Globe, 988.

381
Senator John P. Hale, 30
th
Congress, 1
st
Session. Congressional Globe, 988.

382
Senator Hannibal Hamlin, 30
th
Congress, 1
st
Session. Congressional Globe, 989.

383
Senator Thomas Corwin, 30
th
Congress, 1
st
Session. Congressional Globe, 988.

384
See Fehrenbacher, Dred Scott, 147-151, footnote 79.

190
The pro-Compromise Senators replied to Northern and Southern fears of an
eventual Court decision. Phelps said that the Supreme Court had never lost the
confidence of the American people. Surely they would entirely submit to whatever
decision the Court made.
385
Senator Johnson’s argument probably did not convince
many people. He said that apprehension was not necessary because the Supreme Court
always decided cases unanimously. Moreover, “The members of the Supreme Court
were not politicians.” They did not promote preferences, just the law. Politicians on the
other hand, disagreed and disputed. Since they were especially deadlocked on this issue,
“how desirable, then, in a case of such importance as this to call in a [supposedly,
completely neutral] third party.”
386
He closed by saying that the South would adopt the
decision, regardless of its direction.
Other Congressmen—Southerners, no less—were not as convinced as Johnson. A
North Carolinian said, “the moral influence of the Court must forever be destroyed in one
section or other of the Union.” Another Southerner predicted, “If the decision should be
against the North, the North would not abide by it. They would agitate the country a
great deal more than they do now on the subject.”
387
Senator Foote of Mississippi
explained that the political battles of the next few years would come in the nomination of
Supreme Court Justices. He warned, “Suppose the president should appoint slaveholders
to these offices; there would be more uproar in that Wilmot Proviso Bedlam—the

385
Phelps, CG, 989.

386
Senator Reverdy Johnson, 30
th
Congress, 1
st
Session. Congressional Globe, 1000.
387
Quoted in Fehrenbacher, Dred Scott, 147-151.

191
North—than had ever been heard before. Suppose he should appoint a majority of these
officers from North of Mason and Dixon’s line, then we are gone.”
388

Although the Clayton Compromise never passed both chambers of Congress, it
was important in shaping the way future Legislatures would think about slavery. Here
was an attempt by the law-making body of the United States to shift law-making
authority to another institution. Why? Because they could not come up with a plan that
could gain enough affirmative votes. Congressmen knew they needed some kind—any
kind—of resolution on the issue. They could not close off the Western frontier for too
long. And sooner or later, Oregon, California, New Mexico, and Utah were going to
acquire a population large enough to warrant statehood. In such an environment, they
had to find an answer. Simultaneously, they could not risk their own seats just to solve
the issue. The regime was just beginning to fracture along sectional lines. It was
becoming more and more difficult for Northern and Southern Democrats to set aside their
differences and work out a deal. They had to look out for their own interests. Although
it didn’t happen in 1848, voting to have the Court deal with slavery seemed like a clever
way out of the predicament. Indeed, the regime would once again turn to the strategy.
First, though, just when it seemed like the bisectional regime was dead and all hope for a
legislative bargain gone, Congress produced its most famous compromise.
Compromise of 1850
Senatorial figures such as Henry Clay, Stephen Douglas, John C. Calhoun, Daniel
Webster, and William Seward often occupy accounts of the Compromise of 1850. (This

388
Senator Henry Foote, 30
th
Congress, 1
st
Session. Congressional Globe, 998.

192
description is no exception.) President Zachary Taylor is often overshadowed in the mid-
century crisis. Although he did not live to see its conclusion, the beginning of the story
does not start with famous legislative speeches or Henry Clay’s arrival in Washington,
D.C. Rather, it starts with Taylor’s ascendancy. “Old Rough and Ready” earned his
nickname by way of a successful military career. He had secured America’s first victory
in the War of 1812. He paved the way to eventual victory in the Mexican-American War
by winning the battle of Buena Vista. Taylor had never been elected to office; he had
never even served in a political office. Henry Clay had sought the Whig nomination in
1848, but was passed over because the situation called for a William-Henry-Harrison
type—someone who had unclear stances so as to appeal to both sections. Winfield Scott
was certainly an option. Another victor in the Mexican conflict, Scott had no identifiable
past. Ultimately, though, the party went for Taylor, a Louisianan slaveholder who
appealed more to the South. To balance the ticket, they chose New Yorker Millard
Fillmore, a known anti-slavery man.
The 1848 presidential election took place as the country was embroiled in a
heated debate over the extension of slavery into western lands. Lewis Cass, the
Democratic candidate, campaigned on the notion of popular sovereignty, that the
residents of a given area should be able to choose slavery or freedom for themselves.
Meanwhile, Martin Van Buren had broken from the Democracy to run as a Free Soiler, a
sectional party devoted to the anti-slavery (namely, anti-extension) cause. Both the
popular and electoral counts were close. Taylor won the Electoral College, 163-127. He
also won the popular vote by 140,000 votes. Still, if New York or Pennsylvania had gone

193
to Cass instead of Taylor, a Democrat would have been sitting in the White House during
the 1850 debate. Moreover, though difficult to determine Van Buren’s precise impact, it
is easy to conclude that he had probably affected the results. On one hand, if Free Soilers
had voted for the Democrats, Cass would have won. This is not hard to imagine in New
York. Due to the patronage, New York was always in play for the Democrats. In
addition, the personal candidacy of Van Buren probably had a significant impact in the
Empire State. Van Buren hailed from New York, and as a former Democratic president,
he was likely to draw away past supporters. One the other hand, if Free Soilers had gone
for Taylor, he might have had a larger margin of victory, and more of a mandate behind
his bold agenda. Again, this is not an unlikely scenario as anti-slavery Northerners were
beginning to align themselves much more regularly with the Whigs than the Democrats.
Table 30. Van Buren’s impact on the 1848 presidential election.
State Margin of Victory Votes for Van Buren Electoral Votes
States Taylor won, but where Cass was close
Connecticut 3267 5005 6
Massachusetts 25,791 38,333 12
New York 104,264 120,497 36
Vermont 12,174 13,837 6
States Cass won, but where Taylor was close
Illinois 3099 15,702 9
Indiana 5027 8031 12
Maine 4922 12,157 9
Michigan 6795 10,393 5
Ohio 16,126 35,523 23
Wisconsin 1254 10,418 4

The 31
st
Congress kicked off with a Democratic majority in the Senate, 33-25
(and 2 Free Soilers). Since the Missouri Compromise days, the government had taken
care to balance the Senate. In 1849, the upper house was still equally divided, with each

194
section having 15 states and 30 Senators. The House of Representatives was not as clear
cut. The main issue in the House is that neither the Whigs nor the Democrats held a
majority in the House. With 10 Free Soilers in the mix, neither of the two major parties
could attain a 50% + 1 advantage. This became apparent in the fight to elect a Speaker of
the House. Howell Cobb, a Democrat from Georgia, faced off against Massachusetts
Whig Robert Winthrop for the Speakership. On the 63
rd
ballot, the House decided that a
plurality would be enough to win the chair, and Cobb beat Winthrop 102-99.
389
Though
the Democrats might enjoy committee appointments, they certainly did not have the
whipping powers on floor votes. Additionally, by 1849, the House was a decisively
Northern-controlled institution. Northern states held 140 of the 232 seats.
Table 31. House make-up in 1850.
Democrat Whig Free Soil Total
North 51 79 10 140
South 63 29 0 92
Total 114 108 10 232

Table 32. Senate make-up in 1850.
Democrat Whig Free Soil Total
North 15 13 2 30
South 18 12 0 30
Total 33 25 2 60

Zachary Taylor might have come to the White House as an inexperienced
politician, but upon assuming the presidency, he seemed to have a keen sense for the
explosiveness of the issue that confronted the federal government. Because of the
ambiguity and double-talk of the presidential campaign, no one really knew Taylor’s

389
For the battle of the Speakership, see John C. Waugh, On the Brink of Civil War: The Compromise of
1850 and How It Changed the Course of American History (Wilmington, DE: Scholarly Resources, Inc.,
2003): 43-53. The story includes Cobb and Winthrop both starting out as the frontrunners, both pulling out
of the race in an effort to solve the issue, and both reluctantly being thrown back into it.

195
stance on slavery. Most assumed that as a Louisianan, he would be sympathetic to the
South. The only indication the nation had as to Taylor’s motives was his campaign
promise to let the Legislature resolve the issue, as well as a guarantee that he would not
veto a Congressionally-approved resolution. At his inauguration, he stated he would look
“to adopt such measure of conciliation as may harmonize conflicting interests and tend to
perpetuate that Union which should be the paramount object of our hopes and
affections…I will zealously unite with the coordinate branches of the government.”
390
In
reality, Taylor had his own ideas for how to fix the problem of adding Mexican land to
the US.
I think that Taylor, an ardent Unionist, simply wanted the problem to go away as
soon as possible, regardless of the direction of the solution. That is, he was more
concerned with solving the issue rather than adding more free or more slave land.
Wilentz writes, “Although a slaveholder and an expansionist, Taylor cared little about the
introduction of slavery into the newly acquired territories…Southern insistence on
slaveholders’s rights was a divisive conceit that might destroy the Union.”
391
Old Rough
and Ready initiated a bold plan that would, indeed, take care of the Mexican Cession in
one impressive swoop. He sent emissaries to California and New Mexico to urge those
residents to draw up state constitutions and apply to Congress for entry into the Union as
full-fledged members. That is, he wanted California and New Mexico to skip the
territorial stage. They would come into the US as 2 brand new states. In addition, he
sent ambassadors to Brigham Young’s Deseret (modern Utah) to convince the Mormon

390
Zachary Taylor, “Inaugural Address” The American Presidency Project (5 March 1849).
391
Wilentz, 635.

196
settlements to join the California cause. Moreover, by adding New Mexico, the
government could pave the way for the Supreme Court to decide on the tricky and
lingering Texas-New Mexico border issue.
In sum, Taylor sought to avoid agitation by adding 2 new gigantic states. There
would be no need for the Wilmot Proviso. If the new states were added immediately, the
Proviso’s ban on slavery in western territories would be useless. Moreover, under old
Mexican law, California and New Mexico had prohibited slavery, presumably because
the terrain and climate were not suitable to the peculiar institution. Taylor believed that
these previous actions set the two areas on a path towards free state constitutions. And if
the entire Mexican Cession could be incorporated via two free states, there would be no
need for Northerners to posture. Northern Whigs, as well as Northern Democrats, would
not have to bring up votes on the Proviso just to show their constituents they were
fighting the good fight. They could go to their districts and tell them that slavery had
been banned from the trans-Rocky region. Meanwhile, Southerners too would not have
to fight the dreaded Proviso. They would not have to sign on to legislation that abstractly
denied their right to human property. Instead, they could agree to California and New
Mexico’s exclusion of slavery, all the while lamenting the fact that the geography just
wasn’t suitable for the plantation economy.
Taylor’s plan worked as a cooperative. Utah had to agree to join California,
which had to come into the Union along with New Mexico, thereby shutting off any
territorial debate. Unfortunately for the president, not everything worked out.
Surprisingly, despite their usual suspicion towards the government, the Mormons agreed

197
to join up with California. Regrettably, word of their agreement came after California
had drawn up its constitution. On the plus side, the constitution was anti-slavery. On the
minus side, it drew the state boundary at its present side, thereby excluding modern
Nevada and Utah. At the same time, New Mexico also drafted its constitution, and
subsequently asked for admission to the Union as a territory. Whereas Taylor had
initially planned on adding the entire Mexican Cession in the form of 2 states, now he
was looking at adding only 1 state and leaving a majority of the land open to territorial
status. Undoubtedly, this would lead to bickering over slavery ideology and the Wilmot
Proviso. Taylor pressed forward, saying that Congress should accept California’s
constitution and add the state. New Mexico, on the other hand, should be given territorial
status under its free constitution, but should be made ready for statehood at an early
date.
392

At this point, partisan/sectional preferences began to emerge. With California the
only real issue in play, the anti-slavery Northern Whigs gladly signed on to Taylor’s
proposal to add the Golden State. Why not add a bounteous land as a free state?
Northern Democrats understood that doing so would hurt the party, but that if it ever
came to a vote, they would have to go for California statehood, lest they get hammered at
the polls by the Whigs and/or Free Soilers. Though Northern Democrats might espouse
popular sovereignty (probably for the sake of partisan harmony), if the opportunity to add
a free California came up, they had to pounce on it. Initially, Southern Whigs had

392
See Zachary Taylor, “1849 State of the Union Address” The American Presidency Project (4 December
1849); and Zachary Taylor, “Special Message to Congress” The American Presidency Project (23 January
1850).

198
supported Taylor’s two-huge-states idea. While it cordoned off slavery, it did so in an
unsuitable region. More importantly, it took the Proviso off the table. Robert Toombs, a
prominent Georgia Whig, commented that Southerners “have only the point of honor to
save; and this [a free Cession without the Proviso] will save it, and rescue the country
from all danger of agitation.”
393
Southern Democrats were opposed to the Taylor plan
because it did not accommodate slavery. They countered with extending the 36° 30! line,
which would split California.
The inability of the Taylor administration to convince the entire Cession to come
in under statehood was the first in a chain of events that led the Southern Whigs to
withdraw their support of the president’s plan. If the entire Cession was to be
incorporated, there was no Proviso debate. However, with only California up for
consideration, the rest of the area had to become territorial, meaning that Northerners
would likely try to tack on the Proviso to any California statehood bill. This was
unacceptable to Southern Whigs. Moreover, the hardline Southern Democratic stance
had caught on in the South in 1849. Upon coming home, many Southern Whigs found
their districts and states in a pro-slavery furor. Dixie was starting to lean towards a
confrontational, non-compromising attitude. When they came back to Washington,
Southern Whigs now represented these more polarized views.

393
Quoted in Holt, 56.

199
Table 33. Attitudes towards Taylor’s plans.
Group Attitude towards Taylor’s initial
plan (Two huge states)
Attitude towards Taylor’s
revised plan (just California)
Northern Whigs Greatly approved—made the
entire Cession free
Approved—made California a
free state
Northern
Democrats
Avoided a Proviso showdown,
but understood it hurt the
Southern wing of the party
Would be forced to vote for a
free California, even if Southern
Democrats disapproved
Southern Whigs Greatly approved—avoided the
Proviso; plus, slavery was
unsuitable in the Cession
Disapproved—making New
Mexico and Utah territories
meant discussing the Proviso
Southern
Democrats
Disapproved—wanted slavery to
extend into the Cession
Disapproved—wanted slavery to
extend into California

Presidential relations with Southern Whigs did not help reign in the zealots. Even
non-polarized Whigs would have lobbied the Executive to veto any legislation with the
Wilmot Proviso. Toombs and Alex Stephens of Georgia went to the White House to
discuss the possibility of passage of the Proviso. The Congressmen told the president
that their state would have to secede if the Proviso passed and he did not veto it.
Infuriated, Taylor threw the Georgians out of the White House, but not before calling
them traitors. Taylor told Toombs and Stephens that he would hang them “as high as I
hung spies in Mexico” if they contributed to secession.
394
Never a group to back down
from a political showdown, Southerners hardened their stance even more. Toombs
himself represents the dramatic transformation of the Southern Whigs in 1849. He went
from whole-heartedly supporting the two-huge-states plan to making his famous
secessionist declaration on the House floor. He said, “If by your legislation you seek to
drive us from the territories of California and New Mexico…[then] I am for disunion.”
395

394
See Waugh, 59.
395
Senator Robert Toombs, 31
st
Congress, 1
st
Session. Congressional Globe, 28.

200
Instead of going for California’s admission, the Senate kicked off its 31
st
session
with a variety of bills, most of which hit at the hot-button issues confronting the mid-
century United States. Stephen Douglas proposed adding Deseret as a state or a territory.
George Mason introduced his soon-to-be-famous Fugitive Slave Law, which William
Seward tried to amend. Thomas Hart Benton presented a bill that would trade Texas’s
debt for most of its western claim. And Lewis Cass maintained his stalwart devotion to
popular sovereignty in undeveloped lands. Soon thereafter, Henry Clay obtained the
floor and presented his solution to the nation’s crisis.
On January 29, 1850, Clay presented an 8-point plan to deal with all of the
nation’s issues regarding slavery. “Taken together,” he explained, “they propose an
amicable arrangement of all questions in controversy between the free and the slave
states.” The plan called for a free California, settlement of the Texas-New Mexico border
dispute in favor of New Mexico, the federal government assuming Texas’s debt, ending
the slave trade in Washington, and a stricter fugitive slave law. Clay said, “The plan is
founded upon mutual forbearance, originating in a spirit of conciliation and concession.”
Towards the end of his speech, he said that the South might get the better end of the deal,
but that the North still had much to gain from agreeing to such a bargain.
396

Although Clay tried to persuade his fellow Southerners that the deal was a boon
for Dixie, it was those very Senators who immediately raised concerns with the Great
Compromiser’s plan. Thomas Rusk of Texas naturally took issue with any plan that
included reducing the area of his home state. “The boundaries of Texas are to the Rio

396
Senator Henry Clay, 31
st
Congress, 1
st
Session. Congressional Globe, 244.

201
Grande,” he boomed, “no power at all exists in Congress to take cognizance of that
question.”
397
Jefferson Davis asked, “Is a measure in which we of the minority are to
receive nothing, a measure of compromise?”
398
Henry Foote of Mississippi explained all
of his problems with Clay’s proposal. Congress had no authority to ban the slave trade in
the Capital. Constitutionally, the government could not prevent slaves from entering any
part of the Cession. Popular sovereignty should reign. Texas had the entire title to its
land. The feds could not assume state debts. But, Foote said, the new fugitive slave law
was okay.
Clay tried to address some of the initial concerns. He took the floor a week later
and talked through some of the problems he had not anticipated. Addressing California,
he said that her residents had already made a decision as to what to do with slavery; “It is
a decision made by California herself, and which California had incontestably a right to
make under the Constitution.” He also called attention to a point that Southerners might
have forgotten amidst all the debate: his plan avoided the dreaded Wilmot Proviso, an
unnecessary “positive enactment.” Clay pointed to Congress’s Article I, Section 8
powers over the District of Columbia. Disagreeing with Foote, the Kentuckian said,
“Congress, by this grant of power, is invested with all legislation whatsoever over the
District,” including abolishing the slave trade. Another added bonus came in the form of
a legal settlement to the border dispute. Once his series of resolutions passed, Texas (or
New Mexico) could take their dispute to the Supreme Court, which could judicially set

397
Senator Thomas Rusk, 31
st
Congress, 1
st
Session. Congressional Globe, 247.

398
Senator Jefferson Davis, 31
st
Congress, 1
st
Session. Congressional Globe, 249.

202
the border.
399
Lastly, in an effort to further placate the South, Clay explained that he
“goes furthest in the interpretation of [the fugitive slave] clause.” Not only was the
federal government under obligation to return slaves, but so were the states, as well as
“every man in the Union.”
400
Unfortunately, Clay’s re-address did little to appease the
South. A pair of comments before the re-address (and immediately after the introduction
of the resolutions) and after it shows the South’s disappointment with the deal (see table
below).
Table 34. Attitudes before and after Clay’s address.
Before Re-Address After Re-Address
Speaker Solomon Downs of Louisiana Jefferson Davis of Mississippi
Quote “No one could have heard with greater
pleasure than myself…that the
distinguished Senator from Kentucky
was preparing a compromise bill upon
this agitating question of slavery…But,
sir, I have been greatly mistaken. I
must confess that, in the whole course
of my life, my astonishment has never
been greater than it was when I saw
this proposition brought forward as a
compromise…I consider this
compromise as no compromise at all.
What, sir, does it grant to the
South?”
401

“The country has been induced to
expect—and notwithstanding all
previous evidence against it, even I
had cherished the hope—that the great
power of that Senator, and his known
influence in the country, would have
been exerted in a crisis so dangerous
as this, with the high and holy purpose
of preserving the Union…In this hope,
I have been disappointed…He comes
here, representing those Southern
interests which are at stake, surrenders
the whole claim of the South, and
gives a support to abolitionism which
no Northern man—no, nor every
Northern man in the Senate—could
have afforded.”
402

About a month after Clay re-addressed the Senate, a sickly John C. Calhoun
prepared a speech describing his views of the slavery crisis. In too poor of health to

399
Clay, 121 (appendix).

400
Clay, 122-123 (appendix) emphasis in original.
401
Senator Solomon W. Downs, 31
st
Congress, 1
st
Session. Congressional Globe, 251.

402
Davis, 149 (appendix).

203
deliver the speech himself, James Mason of Virginia actually read off Calhoun’s address.
Most notably, Calhoun seemed distressed at the inequality in the federal government. He
explained that gains in the House of Representatives not only delivered the lower house
to the North, but also the Electoral College. More free states out West would destroy the
last bastion of institutional equality. Calhoun noted, “This great increase of
Senators…will effectually and irretrievably destroy the equilibrium which existed when
the government commenced.” With a Northern-dominated government would come laws
that would oppress Southerners, which would “finally snap every cord, when nothing will
be left to hold the states together except force.” The old South Carolinian said that the
only way to keep Dixie in the Union would be to accede to every one of her demands.
Anything less was unacceptable. Neither Taylor’s plan nor Clay’s could save the Union.
“The South asks for justice, simple justice, and less she ought not to take,” Calhoun
demanded. To Calhoun, “California will become the test question. If you admit her,
under all the difficulties that oppose her admission, you compel us to infer that you intend
to exclude us from the whole of the acquired territories, with the intention of destroying
irretrievably the equilibrium between the two sections.”
403

Northern Senators did not lodge an immediate protest to Calhoun. In fact, no one
really said anything of substance right after his speech ended. Instead, Daniel Webster
and William Seward merely asked to be given time in the near future to address the
California/Compromise question. Both were granted, and Webster went first, delivering
his famous “Seventh of March” speech. Webster was actually slated to speak later, but a

403
Senator John C. Calhoun, 31
st
Congress, 1
st
Session. Congressional Globe, 451-455.

204
huge crowd had packed the Senate that day. Senator Walker had the floor, but
understood that he was not the reason they had come, “This vast audience has not
assembled to hear me, and there is but one man, in my opinion, who can assemble such
an audience. They expect to hear him, and I feel it to be my duty, as well as my pleasure,
to give the floor, therefore, to the Senator from Massachusetts.”
404

Upon receiving the floor, Webster began his speech with perhaps his most
memorable line, “I wish to speak today, not as a Massachusetts man, nor as a Northern
man, but as an American…I speak today for the preservation of the Union.” He was
upset that too many of his colleagues were apt to think that anything but the perfect bill
was acceptable. “There are no compromises or modifications to be made in submission
to difference of opinion,” he said, “They prefer the chance of running into utter darkness
to living in heavenly light, if that heavenly light be not absolutely without any
imperfection.” He thought that the “law of nature” (i.e., natural and physical geography)
sanctioned slavery in Texas, but outlawed it in California and New Mexico. He regarded
the Wilmot Proviso as a “taunt or a reproach,” and thought it unnecessary. He railed
against northern state legislatures telling their Congressmen how to vote on slavery bills
in Washington. And finally, Webster talked about the Northern “disinclination to
perform, fully, their Constitutional duties, in regard to the return of persons bound to
service.” He believed that the North had not been stringent enough in its execution of the
fugitive slave law. “In that respect, it is my judgment that the South is right, and the
North is wrong,” he claimed.

404
Senator Isaac Walker, 31
st
Congress, 1
st
Session. Congressional Globe, 476.

205
Midway through the “Seventh of March” speech, Calhoun feebly entered the
Senate’s chambers. He responded immediately after Webster finished. Calhoun’s main
contention was Webster’s comments about the indestructibility of the Union. “No sir!
The Union can be broken. Great moral causes will break it, if they go on,” he cried.
Unsurprisingly, Calhoun was happy to hear that his Northern colleague would not vote
for the Wilmot Proviso. The South Carolinian agreed with the law of nature section,
declaring that he was also “disposed to leave them [the territories] to be disposed of as
the hand of nature shall determine.” Lastly, Calhoun liked the bit on fugitive slaves, but
pragmatically observed, “it is impossible to execute any law of Congress until the people
of the states shall cooperate.” Fittingly, it was those same sentiments that led Northern
leaders and the Northern public to denounce Webster’s speech. Though it probably did
not harm his legacy, at the time, Webster had all but signed his political resignation letter.
Whig newspapers said he had “ruined himself politically” and that “he’s as dead as a
herring.”
405
One abolitionist compared him to Benedict Arnold. Horace Mann, his
Massachusetts compatriot in the Senate said Webster “is a fallen star!…He has
disappointed us all.”
406

Seward did not receive such condemnation. Only four days after the “Seventh of
March” speech, the New Yorker delivered his “Higher Law” speech, which, procedurely,
probably had more in common with Calhoun’s address than Webster’s. Like Calhoun,
Seward believed that “all legislative compromises radically wrong and essentially

405
Quoted in Holt, 74.

406
Quoted in Waugh, 106.

206
vicious. They involve the surrender of the exercise of judgment and conscience on
distinct and separate questions.” Like Calhoun, he comprehended the importance of
California, saying that he would not barter away anything in her admission to the Union
as a free state. He would not trade the right of slavery in Washington for the right of
freedom in California. That would amount to “some portion of human rights in one
region for liberty in another region.” His crowning moment, though, was when he
explained that they could not “be either true Christians or real freemen if we impose on
another a chain that we defy all human power to fasten on ourselves.” Topping it off:
“There is a higher law than the Constitution.” No Christian nation would establish
slavery, and Seward could not consent to any part of any deal that included its sanction.
Furthermore, he would leave “nothing to a contingency.” Unlike Webster or
Calhoun, he believed “no climate uncongenial to slavery.” He thought that old Mexican
law banning slavery would soon be forgotten. He scoffed at the diffusion-of-slavery-as-
bad-for-slaveholders argument. He asked, “Is slavery stronger or weaker in these United
States from its diffusion into Missouri?” Finally, Seward said that he didn’t believe
Southern threats of secession. His solution to it all: the Wilmot Proviso. Nothing else
could guarantee that slavery would not extend. Nothing else could guarantee God’s
law.
407

While Seward’s speech lifted the moral and soon-to-be Republican cause, it also
made him a number of political enemies. In the course of the speech he had tore into all
three of the great Senators. He dismissed Clay’s compromise, as well as Webster’s plea

407
Senator William Seward, 31
st
Congress, 1
st
Session. Congressional Globe, 262-266.

207
to settle to save the Union. He presented the anti-slavery frustration with Webster’s
address. And finally, he called out John C. Calhoun on his threat of disunion. It was
really the first time a Northerner did not take Southern secession seriously. Cass called
Seward “disingenuous.” President Taylor put out an immediate release (through his
partisan newspaper) that Seward stood alone.
408

Against the wishes of Henry Clay, Senator Foote moved to combine the
compromise measures into one bill. Foote also proposed that an ad hoc committee of 13
Senators look at Clay’s proposal and draft a bill. Seven weeks of inaction had left Foote
quite frustrated. One of his main antagonists was Thomas Hart Benton of Missouri, who
fought to keep the California issue separate from the other measures. At one point, the
Foote-Benton debate became so heated that Benton—a burly frontiersman—tossed his
chair aside and charged towards the smaller Foote. On the advice of his friends, Foote
had brought a pistol, and drew it when the Missourian approached. As other Senators
tried (unsuccessfully) to hold Benton back, he shouted, “Let me pass! Let the assassin
fire! I scorn to go armed. Only cowards go armed.”
409
Unfortunately for Benton, the
event seemed to be a turning point in the suspension of Foote’s committee plan. After
some debate the next day, the Senate agreed to form a select committee of 13, which
included 7 Southerners and 6 Northerners.

408
See Waugh, 114.
409
See Senator Thomas Hart Benton and Senator Henry Foote, 31
st
Congress, 1
st
Session. Congressional
Globe, 762. See also, Waugh, 139.

208
Table 35. Committee of 13.
North South
Lewis Cass (MI) Henry Clay (KY)
Daniel Dickinson (NY) William King (AL)
Jesse Bright (IN) James Mason (VA)
Samuel Phelps (VT) Solomon Downs (LA)
James Cooper (PA) Willie Mangum (NC)
Daniel Webster (MA) John Bell (TN)
John Berrien (GA)

After a few weeks, the committee delivered its report in the form of a 5-point bill.
It included all of Clay’s original proposals. California would come in as a free state. The
rest of the Cession would be divided into two territories, New Mexico and Utah, which
could not legislate on slavery. Texas would lose its boundary dispute, but also be
relieved of its debt. And last, a new fugitive slave law would be enacted and the slave
trade (but not slavery) would be banned in Washington, D.C. The bill soon gained the
label “the Omnibus.” It did not meet a warm reception. Even before amendments could
be offered, Jeremiah Clemens of Alabama tried to fix California’s southern boundary at
36°30!.
410
David Yulee said, “I can never consent to any settlement of the matter in issue
which excludes the South from a face upon the Pacific Ocean.”
411
Both sides agreed that
concession would not satisfy the fanatics of the other section.
412
Perhaps John Hale put it
best: “The Senator from Mississippi [Foote] thanks the committee for what they have

410
Senator Jeremiah Clemens, 31
st
Congress, 1
st
Session. Congressional Globe, 948.

411
Senator David Yulee, 31
st
Congress, 1
st
Session. Congressional Globe, 953.

412
See Clemens, 53 (appendix); and Senator John P. Hale, 31
st
Congress, 1
st
Session. Congressional Globe,
954.

209
done. Well I thank the Senators who have opposed the report, so that there are thanks all
round.” The Congressional Globe then notes that there was laughter in the chamber.
413

The Senate debated the Omnibus for two months. Most of the debate involved
anti-compromise diatribes against the package and procedural moves (e.g., tablings,
amendments, etc.) to frustrate and foil it. Sixteen Senators offered 28 amendments.
414

Three of them involving New Mexico and Utah deserve discussion. Although Clay had
voted against it in committee, the territorial legislatures were not allowed to pass any law
“in respect to African slavery.” Jeff Davis was concerned that Southerners would not be
allowed to bring their slaves into the territories, and therefore sought language that would
let New Mexico and Utah protect slavery (though still not introduce or exclude it). Davis
failed, but Berrien of Georgia took up the cause and replaced “in respect to African
slavery” to “establishing or prohibiting African slavery.” Under the new language, the
legislatures could pass laws allowing slaveholders to enter the territories with their
slaves. This was the exact wording of the Clayton Compromise, and no doubt, the Senate
knew what they doing. Northerners voted overwhelmingly against the Davis and Berrien
amendments; Southerners voted overwhelmingly for them.
Table 36. Davis and Berrien Amendments.
North South Total
Yea Nay Yea Nay Yea Nay
Davis 1 28 24 2 25 30
Berrien 4 25 26 2 30 27

413
Hale, 954.

414
Holman Hamilton, Prologue to Conflict: The Crisis and Compromise of 1850 (Lexington, KY:
University of Kentucky Press, 1964): 98.

210
David Yulee proposed another amendment that helped the Southern cause. Again
following some of the measures laid out in the Clayton Compromise, Yulee believed that
the Constitution followed the flag. That is, the territories had the same rights as the
states. Seeing as how Congress would never tell the states that they could not have
slavery, Yulee’s amendment implied that the Legislature could not touch slavery in New
Mexico or Utah. Debate ensued, but the measure passed 30-24 with mostly Southern
support.
Table 37. Yulee Amendment.
Group Yea Nay
Northern Democrats 5 8
Northern Whigs 0 11
Northern Free Soil 0 1
Total 5 20
Southern Democrats 16 2
Southern Whigs 9 2
Total 25 4
TOTAL 30 24

After passage of the Berrien and Yulee amendments, the total effort had added up
to inability of Congress or the territorial legislature to ban slavery. “At this point,” Don
Fehrenbacher writes, “events took an interesting turn.” Up to the Berrien and Yulee
amendments, Southerners had been the main proponents of the Supreme Court solving
the territorial question. But with the 2 amendments, slavery could not be banned in the
territories by anyone. Southerners no longer had any need for Court intervention.
Instead, a possible anti-slavery Court decision remained the last hope that the New
Mexico and Utah territories could exclude slavery. Free Soiler John Hale recognized the
Northern dilemma. And despite being “the Senate’s harshest critic of the Supreme Court,

211
[he] offered an amendment taken directly from the Clayton Compromise and designed to
ensure access to the Court in all cases involving the legal status of slavery.” It passed
easily.
415

During the flurry of amendments and plots against the compromise, Clay
exclaimed, “I have never seen a measure so much opposed—so much attempted to be
thwarted.”
416
Meanwhile, things in the House of Representatives didn’t appear much
better. Holman Hamilton writes that 58 hour-long speeches were delivered in the
House.
417
The table below indicates the lack of consensus. With no real majority
building on any side of any of the issues, the compromise package looked like it would
fail. That prospect brought hope to administration supporters, who believed that the
debate would turn back to the Taylor plan.
Table 38. Type of speech on Compromise of 1850.
Type of Speech N
Supporting the Omnibus 19
Supporting Taylor’s plan 19
In favor of the Wilmot Proviso 5
In favor of 36°30! 13
In favor of 26-member joint committee 1
Unreported 1

Taylor had another reason to think that his plan might succeed. Rival factions had
banded together in New Mexico to draft a state constitution. Though White House
lobbying might have had an effect, the threat of Texan domination probably factored in
too. On June 20, 1850, New Mexicans voted 8371-39 in favor of the anti-slavery state

415
Fehrenbacher, Dred Scott,168-171.

416
Quoted in Waugh, 157.

417
Hamilton, 99-100.

212
constitution.
418
Around that time, word filtered into Washington that Texas was gearing
up to attack federal posts in the disputed area. Not one to casually cede territory, Texas
believed that New Mexico and/or the federal government had intruded upon its land. The
president did not hedge. Experienced in the art of marching through Texas, Taylor made
it known that he would not back down in the boundary dispute. Alexander Stephens
warned the president that he would initiate impeachment hearings if Taylor did not back
off. Old Rough and Ready was not intimidated. Taylor’s own Secretary of War, George
W. Crawford informed the president that he would not sign an order commanding federal
forces in New Mexico to resist Texan incursion. Taylor simply said that he would sign it
himself.
419
Stephens’s friend and colleague, Robert Toombs noted, “The worst of it is, he
will do it.”
420

Perhaps the most fortuitous thing that could have happened for Taylor would have
been if Texas had actually invaded New Mexico. It would have given him an excuse to
mobilize the federal army and forcibly establish a boundary. From there, with a likely
added rally-around-the-president boost, he might have been able to push through his
other legislative parts of the plan. But Taylor would have needed time, something that
unexpectedly ran out. Only a few days after the Texas threat was received, the nation
celebrated Independence Day. Naturally, government officers took the day off. Senator
Henry Foote—notorious for being long-winded—spent his day delivering a two-hour
oration at the laying of the cornerstone of the Washington Monument. Zachary Taylor

418
Stegmaier, 123.

419
Hamilton, 105-106.

420
Quoted in Waugh, 170.

213
attended, and sat in the hot sun. He returned home hungry and thirsty, and gorged on raw
fruit and iced milk. Soon thereafter, he came down with acute gastroenteritis. Four days
later, he came down with typhoid fever. He died the next day.
On Taylor’s death, Hamilton writes, “The political impact can hardly be
exaggerated, for suddenly the plan of the Committee of 13 had lost an unflinching
enemy.”
421
Millard Fillmore took over, immediately demanded the resignation of the
entire Cabinet, and appointed a new moderate slate in the Executive, headed by Daniel
Webster as Secretary of State. Though anti-slavery in ideology, Fillmore had served as
president of the Senate, and had been witness to the bitter debate taking place among the
likes of Jeff Davis, John C. Calhoun, John Hale, and Salmon Chase. And although
Fillmore was pro-compromise, he still held Taylor’s view that Texas could not invade
federal territory. (Although, this stance might have been an effort to induce
compromise.)
On July 31, 1850, Henry Clay had much to be happy about. The pro-compromise
Millard Fillmore had replaced the independent-minded Zachary Taylor. A barrage of
amendments and amendments to amendments had been beaten back in the middle part of
July. And the legislative day started off with the elimination of the Berrien amendment.
All of a sudden, though, the Omnibus unpredictably fell apart. James Pearce of Maryland
introduced an amendment to eliminate the New Mexico territorial questions from the
Omnibus. Once again, Clay put up a defense, and the usual suspects rushed to both sides
of the debate. Clay and anti-Clay forces probably thought they were going through the

421
Hamilton, 107.

214
motions once again. It was just another attempt that had to be fought off—all part of the
process. Pearce called for the yeas and nays, and to Clay’s astonishment, the measure
passed. Some efforts were made to re-include New Mexico into the Omnibus; one failed
by only two votes. This set in motion a couple of other proposals. David Yulee offered
to strike all sections of the bill dealing with Texas. It passed 29-28. Missourian David
Atchison, a pro-compromise supporter up to this point, now saw the bill as hurting his
section. He moved to strike out the section dealing with California. It too passed, with
Southern Whigs defecting to the anti-compromise position. By the end of the day, all
that was left of the bill was instructions to set up the territory of Utah with no ban on
slavery. That bill passed, but the Omnibus was dead.
Depressed over his failure to unite the country, and needing the relaxation of
warm saltwater, Henry Clay left Washington to a vacation home in Rhode Island.
Stephen Douglas rightfully receives a lot of credit for what happened next. Often
underemphasized, however, Millard Fillmore played a key role in speeding up the
legislative process. Right before Douglas introduced the first piece of the Compromise,
Fillmore took up the boundary dispute and sent a special message to Congress. He
declared Santa Fe and the area east of the Rio Grande as federal property. Fillmore
warned, “If Texas militia, therefore, march into any one of the other states or into any
territory of the United States…the President of the United States has no option left to
him, but is bound to obey the solemn injunction of the Constitution and exercise the high
powers vested in him.” Like Taylor, Fillmore was willing to send federal troops to the
disputed area to show Texas that it did not have a claim to the western lands. Unlike

215
Taylor, Fillmore implored Congress to solve the issue so as to avoid any kind of conflict.
At the end of the message, he pleaded, “I think no event would be hailed with more
gratification by the people of the United States than the amicable adjustment of questions
of difficulty which have now for a long time agitated the country.”
422

With Clay out of Washington, Douglas took over the legislative agenda. His
strategy turned out to be what Clay originally wanted: to approach each part of the
compromise in a separate piece of legislation. Three days after Fillmore’s special
message, James Pearce—the same Senator who had initiated the trio of amendments
killing the Omnibus—introduced legislation fixing the Texas border to its present limits.
It also called for the federal government to pay off $5 million of Texas’s debt, as well as
another $5 million to be given to Texas. The measure passed 30-20. Shortly thereafter,
they voted to admit California as a free state by a 16-vote margin. Two days later, New
Mexico came in as a territory with no federal restrictions or sanctions on slavery. It
passed by a 17-vote margin. A week later, a new Fugitive Slave Law was enacted. Next,
the Senate voted to eliminate the slave trade in the District of Columbia. In a span of
about a month, the Senate had passed the spirit of Clay’s original proposals. In less than
3 weeks, they had passed most of the Compromise. The lower house worked even more
quickly.

422
Millard Fillmore, “Special Message to the House of Representatives and Senate,” The American
Presidency Project (6 August 1850).

216
Table 39. Parts of Compromise of 1850.
Piece Senate Date House Date
Fillmore’s Special Message August 6
Texas bill passes August 9 September 6
California bill passes August 13 September 7
New Mexico bill passes August 15 September 7
Fugitive Slave Law of 1850
passes
August 26 September 12
D.C. slave trade bill passes September 16 September 17

Table 40. Senate vote on California.
Group Yea Nay
Northern Democrat 15 0
Northern Whigs 11 0
Northern Free Soil 2 0
Total 28 0
Southern Democrats 2 14
Southern Whigs 6 18
Total 6 18
TOTAL 34 18

Table 41. Senate vote on Utah.
Group Yea Nay
Northern Democrat 11 3
Northern Whigs 0 11
Northern Free Soil 0 2
Total 11 16
Southern Democrats 13 0
Southern Whigs 8 2
Total 21 2
TOTAL 32 18

Table 42. Senate vote on New Mexico.
Group Yea Nay
Northern Democrat 10 3
Northern Whigs 1 6
Northern Free Soil 0 1
Total 11 10
Southern Democrats 9 0
Southern Whigs 7 0
Total 16 0
TOTAL 27 10

217
Table 43. Senate vote on Fugitive Slave Law of 1850.
Group Yea Nay
Northern Democrat 3 3
Northern Whigs 0 8
Northern Free Soil 0 1
Total 3 12
Southern Democrats 15 0
Southern Whigs 9 0
Total 26 0
TOTAL 29 12

Table 44. Senate vote on D.C. slave trade.
Group Yea Nay
Northern Democrat 16 0
Northern Whigs 9 0
Northern Free Soil 2 0
Total 27 0
Southern Democrats 2 12
Southern Whigs 4 7
Total 6 19
TOTAL 33 19

Passage in the House of Representatives came with relatively little trouble. The
key to passage of the whole package was getting the Texas and New Mexico issues
through first. Linn Boyd of Kentucky proposed that the House combine the two
measures into a “little omnibus.” He then gave a speech that historians have credited
with having a significant impact.
423
His most memorable quote read, “I think we have
talked enough—in God’s name let us act.”
424
Boyd moved—and was granted—to have
the little omnibus be the business everyday until disposed of. The Speaker then handed
over temporary control of the House to Boyd so that he could see his own bill through the
debate period. Trying to table the bill, anti-compromise forces almost succeeded in

423
See Hamilton, 156; and Waugh, 182.

424
Representative Linn Boyd, 31
st
Congress, 1
st
Session. Congressional Globe, 1697.

218
sending it to its death via reference to the Committee on the Whole. They tried the
maneuver 3 times, falling short 104-103, 104-101, and 103-101. On the first vote, it took
Speaker Cobb’s tie-breaking vote to keep the little omnibus on the agenda. Two days
later, the Texas & New Mexico bill passed 108-98. Like the Senate, everything else fell
into line shortly thereafter (see tables below).
Table 45. House vote on Little Omnibus (Texas-New Mexico)
Group Yea Nay
Northern Democrat 32 13
Northern Whigs 24 44
Northern Free Soil 0 10
Total 56 76
Southern Democrats 26 28
Southern Whigs 26 2
Total 52 30
TOTAL 108 106

Table 46. House vote on California.
Group Yea Nay
Northern Democrat 46 0
Northern Whigs 66 0
Northern Free Soil 10 0
Total 122 0
Southern Democrats 10 45
Southern Whigs 18 11
Total 28 56
TOTAL 150 56

Table 47. House vote on Utah.
Group Yea Nay
Northern Democrat 32 13
Northern Whigs 12 47
Northern Free Soil 0 10
Total 44 70
Southern Democrats 29 14
Southern Whigs 24 1
Total 53 15
TOTAL 97 85

219
Table 48. House vote on Fugitive Slave Law of 1850.
Group Yea Nay
Northern Democrat 28 16
Northern Whigs 2 50
Northern Free Soil 0 10
Total 30 76
Southern Democrats 53 0
Southern Whigs 26 0
Total 79 0
TOTAL 109 76

Table 49. House vote on D.C. slave trade.
Group Yea Nay
Northern Democrat 47 0
Northern Whigs 66 0
Northern Free Soil 7 0
Total 120 0
Southern Democrats 2 43
Southern Whigs 2 16
Total 4 59
TOTAL 124 58

The Compromise of 1850 hardly deserves its moniker. A compromise connotes
that both sides consent to the agreement based on the give and take of the whole package.
The Compromise of 1850 was not a single package. It was a series of bills that each
found different majority coalitions. The coalition that passed the Fugitive Slave Act of
1850 was much different than the group who barred the slave trade in Washington. If
anything, the Compromise of 1850 demonstrates that the dominant Congressional
coalition was breaking down. Instead of Democrats voting with Democrats, party men
were now aligning with their sectional opposition. It is no wonder that the Democracy
started to turn to the courts—slavery was slowly destroying the Party.

220
Kansas-Nebraska Act
Different theories arise in explaining why the major players of the mid-1850s
polity turned to the Nebraska issue. The “railroad interpretation” presents a story about
continental transportation, and the battle between Southerners and Westerners over the
precise route. Stephen Douglas, so the story goes, insisted on having a railroad go across
the Northern part of the country, with Chicago as one of the main hubs. Meanwhile,
Southerners wanted the line to go through the South. President Franklin Pierce even
commissioned James Gadsden to negotiate with Mexican authorities to purchase a
narrow strip of land south of the Cession conquest. That land seemed to be more suitable
to railroad construction. The theory states that Douglas himself had a personal interest in
a Northern route. Beyond providing his home state with an economic boon, he also had
extensive land holdings in Chicago, as well as in Superior City, Wisconsin—another
option for a terminal.
425
The Little Giant believed that in order for construction of a
railway to proceed, the land through which it passed had to be organized. Thus, he
pushed for speedy organization of the large Nebraska Territory.
Another interpretation states that the president had so badly doled out the
patronage, that elements within the Democratic Party stood against each other.
According to historical accounts, New York seemed to be the focal point of the mess. In
the 1850s, the New York Democratic Party had split into old Jacksonian conservatives
(who understood the necessity of allying with the South) and new Van Burenites, who
joined up with Free Soilers. Wanting to bring the Van Burenites back into the

425
Holt, 96.

221
Democratic fold, Pierce offered them positions within the government. They accepted,
and were given the promised positions. This upset the conservatives, who broke with
Van Burenites and ran in the state election as separate from their intra-party counterparts.
The split ticket allowed the Whigs to break through, and take hold the New York state
government. Pierce responded by punishing the conservatives; he removed them from
patronage spots. New York’s conservative Senators responded by threatening to stall the
any and all of the administration’s Van Burenite appointments.

Skowronek writes, “In
December 1853, the Democratic Party was already a shambles.” Needing to reunify the
New York Democracy—as well as shift the national focus—a group of Senators
(including Douglas) met with the president to consider Nebraska, thus “offering him a
chance to save his administration.”
426
Pierce signed on.
Fehrenbacher argues that the “most important factor of all [in putting Nebraska on
the agenda] was the very existence of the anomaly, conspicuous on any map, of a great
region in the heart of the continent, possessed by the nation for a half-century, but still
ungoverned.”
427
Moreover, state lobbies from Iowa and Missouri pressured the federal
government to organize the land directly to their west. They claimed they needed better
transportation routes, a more organized way of governing, and protection from the
Indians. In sum, perhaps the main reason for taking on the Nebraska Territory issue was
that the time had come for Nebraska to receive formal territorial status.

426
See Holt, 97-100; and Skowronek, Politics Presidents Make, 184-185, 190.

427
Fehrenbacher, Dred Scott, 180.

222
Iowan Senator Augustus Dodge introduced a measure that organized nearly the
entire unorganized region of the Louisiana Purchase. It’s southern border started at 36°
30! (the northern border of present Oklahoma). It ran northward all the way to Canada.
Dodge intended Nebraska to be an enormous territory.
As Chair of the Committee on the Territories, Douglas approved Dodge’s
proposal. On January 4, 1854, the Illinoisan reported the bill with the same provisions as
had been provided in the Utah and New Mexico organization acts. It said that states
could be carved out of the territory and “received into the Union with or without slavery,
as their constitutions may prescribe at the time of their admission.”
428
Of course, this
meant that slavery might be allowed in the Louisiana Territory above the 36° 30! line, a
clear violation of the 1819 Compromise. Douglas himself believed that the Senate should
neither affirm nor repeal the Missouri Compromise line.
429

Naturally, Northerners—especially anti-slavery Whigs and Free Soilers—were
upset. The 1819 version of that faction had stood against the Missouri deal. Though it
had passed over their dissents, they could at least take comfort in knowing that a clearly
drawn line existed whereby slavery could not pass. The Dodge-Douglas Nebraska
measure, though, completely threw the previous deal out. Though not explicitly
repealing the Missouri Compromise line, it left the door open for substantive annulment.
Before the Senate had even scheduled debate on the bill, Charles Sumner announced that
at the first chance, he would move an amendment stating, “That nothing herein contained

428
Senator Stephen Douglas, 33
rd
Congress, 1
st
Session. Congressional Globe, 115.
429
See, for example, Senator Salmon P. Chase, 33
rd
Congress, 1
st
Session. Congressional Globe, 154.

223
shall be construed to abrogate or in any way contravene the act of March 6, 1820 [the
Missouri Compromise].”
430
Specifically, Sumner pointed out that Douglas might be
opening Louisiana Territory land above 36° 30! to slavery. Surprisingly, Southerners
were just as upset as they had hoped for an explicit repeal of the Missouri Compromise
line. Not to be outdone by the North, Archibald Dixon of Kentucky moved that the
section of the Missouri bill dealing with the 36° 30! line be repealed, “as if the said act,
entitled as aforesaid, and approved as aforesaid, had never been passed.”
431

Fehrenbacher comments, “In attempting pragmatically to neutralize the Missouri
Compromise restriction without formally repealing it, Douglas awakened the anger of
antislavery men and yet fell short of satisfying many Southerners.”
432

Dixon’s amendment was a key point in the Nebraska issue because it had been
offered up by a Southern Whig. Not wanting to be out-Southerned on the slavery issue,
Democrats responded by becoming even more pro-slavery. Douglas was conscious of
the feelings towards his bill. He met with key Senators, as well as the president, to draft
a new piece of legislation that stood a better chance of passing. The new bill would
introduce two new territories, Kansas and Nebraska. The former would cut west from
Missouri; the latter west from Iowa and up to Canada. Like the January 4
th
bill, this one
dealt with slavery via popular sovereignty. It is not hard to see what this bill really
sought to do: create two areas—one slave and one free. Northerners immediately saw
right through the bill and again raised the cries of betrayal of the Missouri Compromise.

430
Senator Charles Sumner, 33
rd
Congress, 1
st
Session. Congressional Globe, 186.

431
Representative Archibald Dixon, 33
rd
Congress, 1
st
Session. Congressional Globe, 175.
432
Fehrenbacher, Dred Scott, 182.

224
Salmon Chase, in particular, was insulted. He authored an editorial with a biting
tone.
433
Titled, “An Appeal of the Independent Democrats,” it started by saying that “it is
our duty to warn our constituents whenever imminent danger menaces the freedom of our
institutions or the permanency of the Union.” The “Appeal” announced that the Kansas-
Nebraska bill was a “gross violation of a sacred pledge,” “a criminal betrayal of precious
rights,” and “an atrocious plot.” Chase argued that Missouri would never have been
allowed into the Union without the line extending from her Southern border. Now, the
text of the “Appeal” seems pretty reasonable. It actually reads like the standard Northern
line that a deal had been struck and that the North expected the South to hold to it. Some
of the language is incendiary, but the significance of the document is that it was popular
and it set the terms for debate for Northerners. Just as Southern Democrats had
radicalized further in response to the Dixon amendment, Northern Democrats now had to
face their constituents in light of the “Appeal.” Even Northern Whigs changed their tone.
Faced with the Free Soil challenge, they attacked the initiative as a Southern, rather than
Democratic, measure.
434

“An Appeal of the Independent Democrats” probably had its most considerable
effect on Southern Whigs. Before publication of the “Appeal,” the Whig strategy had
been to denounce the Democrats for going back on their pledge to keep slavery out of
national politics. The Whigs could stick to their 1852 platform promise, which

433
Officially, Chase, Charles Sumner, Joshua Giddings, Edward Wade, Gerrit Smith, and Alexander
DeWitt signed on. Most agree that Chase wrote the editorial.
434
Graber, Dred Scott, 164.

225
“deprecated all further agitation of the question thus settled.”
435
Similarly, the
opposition’s 1852 platform stated, “The Democratic Party will resist all attempts at
renewing, in Congress or out of it, the agitation of the slavery question, under whatever
shape or color the attempt may be made.”
436
By accusing Democrats of going back on
their word, both Northern and Southern Whigs could transform the issue into a partisan,
rather than sectional, one. They could avoid Northern Whig denouncements on the
institution of slavery, which would save the party from being compared to the hated
abolition movement. Meanwhile, Southern Whigs could get off the hook from halting
the spread of slavery. Moreover, Southern Whigs legitimately thought that slavery would
never take root in Kansas and Nebraska. In addition, Southern Whigs were the landed
aristocracy. They did not like “squatter sovereignty,” the idea that the earliest settlers
(and therefore, poorest, least educated, and most ignorant) got to make the decision on
slavery.
With Chase’s condemnation, though, any non-pro-slavery stance became
associated with abolitionism. In addition, with their Northern brethren lining up behind
the “Appeal,” Southern Whigs were charged with allying with Conscience Whigs who
were out to create a sectional party.
437
Southern Whigs then had to choose between
associating with Garrisonians/future Republicans or Southern Democrats. Senator James
Jones really hit on the struggle that Southern Whigs faced. Although they had stuck with

435
“1852 Whig Platform” The American Presidency Project (1852).

436
“1852 Democratic Platform” The American Presidency Project (1852).
437
Graber, Dred Scott, 164.

226
the Whigs for years, they now had to face a Northern Whiggery bent on a hardcore anti-
slavery position. Jones said:
Through my whole political life, I have been devoted faithfully and honestly to
the vindication of the great principles of the Whig Party…We have stood together
and fought together for 10 or 15 long years…I can tell the Senator from
Ohio…that we seek to make no aggression upon the North; but I tell him more,
that we know our rights, and knowing them, we mean to maintain them at all
hazards and to the last extremity. Do not try to scare us out of them.
438

Table 50. Factions and the “Appeal.”
Faction Initial Stance Key Moment Revised Stance
Southern Democrats Pro-slavery Dixon Amendment Nothing less than
explicit repeal of
36° 30! line
Northern Democrats Open to
compromise
“Appeal of the
Independent
Democrats”
Less open to
compromise; more
likely to vote
sectionally
Northern Whigs Anti-slavery “Appeal” Still anti-slavery,
with beliefs
articulated by
Chase, but hardened
because of Free Soil
challenge
Southern Whigs Open to
compromise
“Appeal” Not open to
compromise

Douglas responded to Chase on the Senate floor. Chase tried to explain himself
three times during Douglas’s address; he was interrupted every time. At one point the
Little Giant fumed, “Mr. President, I do not yield the floor. A Senator who has violated
all the rules of courtesy and propriety…who came to me with a smiling face, and the
appearance of friendship, even after that document had been uttered…such a Senator has
no right to my courtesy upon this floor.”
439
Regarding the substance of Chase’s claim,

438
Senator James C. Jones, 33
rd
Congress, 1
st
Session. Congressional Globe, 341.
439
Douglas, 276.

227
Douglas said that the Compromise of 1850 had reset the ways Congress dealt with
slavery. He argued that popular sovereignty was now the way to deal with slavery, as
provided by the New Mexico and Utah acts. Anything that stood in the way of popular
sovereignty could summarily be thrown out. “A close examination of this act [Kansas-
Nebraska],” Douglas contended, “clearly establishes the fact that it was the intent as well
as the legal effect of the compromise measures of 1850 to supersede the Missouri
Compromise, and all geographical and territorial lines.”
440
The “Appeal” had anticipated
the “supersede” argument and declared that “no assertion could be more groundless.”
441

Most northerners agreed.
With Chase and Douglas setting the tone, a long and bitter debate over the
Kansas-Nebraska Act ensued. In 35 years, Northerners had gone from the Missouri
Compromise’s most vocal opponents to its most stalwart supporters. Likewise,
Southerners almost unanimously signed on the 1820 compromise. Now, they sought to
do away with it. These switches were but part of the discussion in the Senate debate.
And like the Missouri deliberation, the debates encompassed the entirety of the slavery
issue, running from the immorality of the institution to its incompatibility with the
American Midwest. Though the debate was heated, the bill passed by a large margin.
On March 3, 1854, the Senate voted 37-14 in favor of Kansas-Nebraska. The vote in the
House of Representatives was much closer.

440
Douglas, 278.
441
“Appeal of the Independent Democrats,” in The Library of Original Sources: 1833-1845, ed. Oliver
Joseph Thatcher (New York: University Research Extension, 1907): 144.

228
Table 51. Senate vote on Kansas-Nebraska.
Group Yea Nay
Northern Democrats 14 4
Northern Whigs 0 7
Northern Free Soil 0 1
Total 14 12
Southern Democrats 13 1
Southern Whigs 10 1
Total 23 2
TOTAL 37 14

House consideration of the Senate bill started on March 21. Immediately,
William Richardson, a Stephen Douglas Democrat from Illinois, proposed to have the bill
referred to the Committee on the Territories, where Southern and Democratic influence
was great. Francis Cutting of New York then moved to have the bill go to the Committee
of the Whole, a potential dying ground. Richardson even admitted, “the reference of the
bill to the Committee of the Whole would be killing it by indirection.”
442
After some
bickering, the House voted on Cutting’s motion, and passed it 110-95. Upon passage,
Cutting moved right away to table it. It passed 110-96.
Table 52. House vote to refer to the Committee on the Whole.
Group Yea Nay
Northern Democrats 54 25
Northern Whigs 45 0
Northern Free Soil 4 0
Total 103 25
Southern Democrats 2 55
Southern Whigs 5 15
Total 7 70
TOTAL 110 95

Kansas-Nebraska looked to be dead, but Douglas worked with his House
counterparts to get the bill untabled. At one point, the House voted 18 times in a row to

442
Representative William A. Richardson, 33
rd
Congress, 1
st
Session. Congressional Globe, 701.

229
move the bill up the agenda. On May 22, the House voted on the bill. It passed 113-100.
Southern Democrats, Southern Whigs, and Northern Whigs all voted heavily by section.
But half the Northern Democrats voted for Kansas-Nebraska, providing the measure the
bare support it needed to pass. Of note, Pierce had fully signed on to the plan and made
the issue about Democratic orthodoxy. If only 7 out of 44 (16%) Northern Democrats
had switched their votes, the Act would not have passed.
Table 53. House vote on Kansas-Nebraska.
Group Yea Nay
Northern Democrats 44 42
Northern Whigs 0 45
Northern Free Soil 0 4
Total 44 91
Southern Democrats 57 2
Southern Whigs 12 7
Total 69 9
TOTAL 113 100

The breakdown of votes shows how split the parties were on the issue. For three
of the four major groups in the House, Kansas-Nebraska proved a sectional issue. If it
had truly been a partisan issue, passage in the House would not have proven so difficult.
To be sure, Democrats held an incredible 157 of the 234 seats in the lower house. A two-
thirds majority in a majoritarian institution would be enough to ram through any
legislation. Instead, it turned into a North/South issue, with enough Northern Democrats
defecting. In the process, the Northern Democracy paid the price. Of the 44 who voted
for Kansas-Nebraska, only 7 were returned to Congress. The 1854 midterm elections
were not just a condemnation of the “aye” voters, though. In total, Northern Democrats

230
lost 66 of their 91 seats. In terms of the presidential contest, 50% of the North voted for
Pierce in 1852.
443
That dropped to 41% in 1856, with a loss of 96 electoral votes.
444

Still, as bad as the loss might have been Northern Democrats, their “aye” votes
helped stave off a mass breakdown of the party in 1854. They were still able to come
together to nominate James Buchanan as a North/South consensus candidate. The Whigs
were not as fortunate. The decision of Southern Whigs to repeal the 36° 30! line spelled
the end of their relationship with their northern counterparts. With such strong views
against slavery, Conscience Whigs could no longer ally with politicians who went back
on the 1820 deal. At the close of the Kansas-Nebraska Act, the Whigs were in complete
disarray. Some Southern Whigs tried to maintain the old party; others defected to the
Democratic Party. Northern Whigs had more options. Though unlikely to do so, they
could go to the Democracy. Some, like Lincoln, tried to stay on with the party in hopes
of reuniting the old American System coalition. Some gave up hope of a bisectional
party and joined the explicitly northern upstart Republicans. Others sought refuge in the
Know-Nothing Party, a short-lived—but at the time, seemingly insurgent—coalition of
anti-Catholic and anti-immigrant men who distrusted elitist politicians.
During the debate, Whigs and Democrats from both sections understood that the
bill had the potential to destroy the party system. Indeed, it eventually did. With the
stakes so high, politicians sought more than ever to hand the issue to the judiciary. They
hoped to make slavery a legal issue, in which case, they would not have to deal with it.

443
Holt, 109.

444
The following are states Democrats won in 1852, but lost in 1856 (electoral votes in parentheses): Iowa
(4), Wisconsin (5), Michigan (6), Ohio (23), New York (35), Maine (8), New Hampshire (5), Rhode Island
(4), Connecticut (6).

231
Theoretically, if the Supreme Court decided the issue, it would be a win-win for everyone
involved. A proslavery opinion could be denounced by northerners, who would also
resentfully agree to abide by the decision, or vice versa. Congressmen had tried to throw
the slavery issue to the Court before. The Clayton Compromise was an express attempt
to pass the buck. But even then, the partisan cleavages were qualitatively great enough,
and perhaps more importantly, the issues other than slavery were salient enough to keep
the party structure together. By 1854, though, slavery had become the overwhelmingly
dominant issue. A viable third party (the Free Soilers, then Republicans) emerged with a
platform that looked more like a plank. Southern Democrats had become more
radicalized than ever. Conscience Whigs refused to compromise on issues of human
bondage. And the traditional compromisers—the Northern Democrats and the Southern
Whigs—were forced to choose sides. By 1854, sectional tensions had reached a point
where party survival was all but impossible. To their credit, politicians in Washington
recognized this fact and tried to avoid the coalitional breakdown. With their sectional
partnerships at stake, Congressmen tried harder to pass the slavery issue to the Supreme
Court.
Many scholars have noted the efforts of the 33
rd
Congress to pass the territorial
slavery issue to the Supreme Court.
445
Indeed, many Congressmen expressed their desire
for the Court to take up the issue. What has gone somewhat unrecognized is the fact that
ever since the crisis of 1850, the Legislature had been talking of throwing slavery to the

445
See Mark A. Graber, “The Non-Majoritarian Difficulty: Legislative Deference to the Judiciary” Studies
in American Political Development 7 (1993): 35; Graber, Dred Scott; Fehrenbacher, Dred Scott; and
Wallace Mendelson, “Dred Scott’s Case—Reconsidered” Minnesota Law Review (1953-1954): 16.

232
Court. The Utah and Texas-New Mexico bills both had clauses that allowed the Supreme
Court to weigh in on slavery. Now, the legislation stated that the Court could take an
appeal that dealt with property worth more than $1000. But Congress made a special
exemption “in all cases involving title to slaves…without regard to the value of the
matter.”
446
Also, as noted, Southern Senators tried to include language in the bill that
matched the proposed phrasing of the Clayton Compromise, which was an explicit
attempt to pass the buck. Fehrenbacher notes, “The obvious legal effect [of the Berrien
Amendment] would be…to push the slavery issue toward a judicial decision.”
447

Interestingly, both parties wanted a judicial decision. In a setting that’s really
unparalleled in American political history, both of the major political parties faced the
exact same cleavages in their respective coalitional makeups. Both wanted to keep their
bisectionality. Yet both faced an issue threatening to rearrange coalitions into the very
sectional nature they sought to avoid. Looking back, it is easy to say that the Democrats
dominated the Antebellum period. They won all but two presidential elections—and
even then, it took uncommitted-to-anything candidates. They held Congress throughout
most of the era. However, in 1850-1854, neither party could claim that they thoroughly
dominated politics. And neither party headed into any federal election absolutely sure
that they would win most contests. Given the explosiveness of slavery, presidential and
Congressional elections were somewhat unpredictable. In such an environment, both
believed that the only way to achieve such thorough domination was to keep the old

446
“Texas-New Mexico Act” 9 Stat. 446 (1850) and “Utah Act” 9 Stat. 453 (1850), quoted in Mendelson,
19.
447
Fehrenbacher, Dred Scott, 168.

233
coalition alive. Thus, Whigs and Democrats alike looked to the Supreme Court as their
party’s savior.
The politicians themselves realized their partisan crossroads, and publicly
announced their preferences for judicial intervention during the Compromise of 1850
debates. Samuel Phelps, a Whig, said that Congress was not doing much in the 1850
legislation, but rather professing “on all sides a willingness to submit the question to the
tribunal created by the Constitution for the purpose of deciding it.”
448
Henry Clay said
that Congress was not deciding the local law or the proper Constitutional interpretation.
The Great Compromiser even recognized slavery’s ultimate uncompromisability: “We
cannot settle it.” Instead, the territories could resolve slavery on their own, subject to the
Constitution. But who knew what the Constitution intended? “The proper and competent
tribunal—the Supreme Court,” Clay answered, “When the question comes before the
Supreme Court of the United States, that tribunal alone will declare what the law is.”
449

Democrats agreed. Hopkins Turney of Tennessee stated that they should turn
back to the “Clayton bill,” which “transferred all the questions.”
450
Jefferson Davis was
perhaps the most vocal supporter of judicial intervention. He interjected his pass-the-
buck feelings a number of times. He said, “I do not wish to present to the consideration
of the Senate a question which belongs to the Supreme Court.”
451
At one point, he

448
Senator Samuel Phelps, 31
st
Congress, 1
st
Session. Congressional Globe, 95 (appendix).

449
See Senator Henry Clay, 31
st
Congress, 1
st
Session. Congressional Globe, 1155; and Senator Henry
Clay, 31
st
Congress, 1
st
Session. Congressional Globe, 916 (appendix).

450
Senator Hopkins Turney, 31
st
Congress, 1
st
Session. Congressional Globe, 297 (appendix).

451
Davis, 1628 (appendix).

234
exclaimed, “We are entitled to a decision of the Supreme Court.”
452
Floridian David
Yulee summed up the Southern Democracy’s feelings: “The South is prepared now,
conscious as she is that she demands only her Constitutional rights, to submit the
question to the Supreme Court.”
453
As if to address Yulee directly, Lewis Cass said, “If
the South think they have rights there under the Constitution, in God’s name, let the
Supreme Court determine the question.”
454

If both sides of the aisle wanted judicial resolution of slavery in 1850, why didn’t
it come before Kansas and Nebraska became an issue? The Compromise of 1850 had
opened up Utah and New Mexico to popular sovereignty, which ostensibly seemed to
open the door to challenging the introduction/non-introduction of slavery in the courts. It
reality, it was moot. Fehrenbacher comments, “Slaveholders simply did not migrate to
either territory.” The 1860 census reported that only 29 slaves had been brought into
Utah. And despite obtaining a codified slave code, not a single slave resided within New
Mexico.
455
De jure, Southerners got what they wanted in Utah and New Mexico.
Northerners never brought suit because, de facto, it wasn’t a real issue. In fact, with no
major slavery legislation exciting everyone, 1850-1854 was a relatively quiet period for
Washington.

452
Davis, 154. See also Davis, 917 (appendix): “I was willing at a former time, and now, to rest on the
Supreme Court.”

453
Yulee, 95 (appendix).
454
Senator Lewis Cass, 31
st
Congress, 1
st
Session. Congressional Globe, 531.

455
Fehrenbacher, Dred Scott, 177.

235
Of course, Kansas-Nebraska rejuvenated the 1850 hysteria. And of course, it
came accompanied with age-old demands for states rights, moral guidance, and Southern
protections. But again, there was widespread support for Supreme Court intervention.
The most telling indication of the desire to pass the buck comes from the Kansas-
Nebraska Act itself. It left “the people thereof perfectly free to form and regulate their
domestic institutions in their own way, subject only to the Constitution of the United
States.”
456
Fehrenbacher argues that this was a “totally superfluous phrase.” Its only
intention was to extend an invitation to the Court to get Congress out of the territorial
slavery controversy. Fehrenbacher also believes that the Act was purposely written with
a great deal of ambiguity, another indicator that Congress wanted to the Court to
intervene in the issue.
457

President Pierce personally believed repealing the 36° 30! line would “relieve the
statue book of an objectionable enactment, unconstitutional in effect and injurious in
terms to a large portion of the states.”
458
Still, Wallace Mendelson writes, Pierce favored
leaving repeal of the Missouri Compromise line out of the Kansas-Nebraska Act.
Instead, he wanted to “leave it to the Supreme Court to decide.”
459
A number of
Congressmen agreed. Robert Hunter told the Senate the bill did not infringe on anything.
Rather, it let the territorial governments legislate on the issue, so long as they followed

456
“Kansas-Nebraska Act,” Blue and Gray Trail (1854), emphasis added.

457
Fehrenbacher, Dred Scott, 185.

458
Franklin Pierce, “1856 State of the Union Address” The American Presidency Project (2 December
1856).

459
Quoted in Mendelson, 24.

236
the US Constitution. If they produced unconstitutional laws, the courts would step in.
He believed it the “best compromise.”
460
Senator Albert Brown combated the notion that
the bill excluded slavery. Instead, “it leaves the question where I am quite willing it
should be left—to the ultimate decision of the courts. It is purely a judicial question, and
if Congress will refrain from intimating an opinion, I am willing that the Supreme Court
shall decide it.”
461
South Carolinian Andrew Butler (a fire-eater) even announced that he
trusted the Northern Justices just as much as the Southerners.
462
Prodded by some to
predict the potential outcome of such a Court case, Douglas simply stated, “I am willing
to leave that to the Supreme Court.”
463
He later added that the Judiciary’s decision would
be final the “end of that controversy.”
464

Long before Mark Graber coined the “nonmajoritarian difficulty,” Senator Judah
Benjamin of Louisiana explained the political dynamics of slavery in 1850s America.
His speech is remarkable, if not for its insight, then at least for its candor:
All agreed that whether Congress had the power or not to exclude slavery from
the territories, it ought not to exercise it…In order to provide a means by which
the Constitution could govern, by which that single undecided question could be
determined, we of the South, conscious that we were right, the North asserting the
same confidence in its own doctrines, agreed that every question touching human
slavery, or human freedom, should be appealable to the Supreme Court of the
Untied States for its decision. There is the Kansas bill. Therefore when I
advocate this bill among my people at home, conscious that they share my

460
Senator Robert M.T. Hunter, 33
rd
Congress, 1
st
Session. Congressional Globe, 224.
461
Senator Albert Brown, 33
rd
Congress, 1
st
Session. Congressional Globe, 232 (appendix).

462
Senator Andrew Butler, 33
rd
Congress, 1
st
Session. Congressional Globe, 240 (appendix).

463
Senator Stephen Douglas, 34
th
Congress, 1
st
Session. Congressional Globe, 797.

464
Senator Stephen Douglas, 35
th
Congress, 2
nd
Session. Congressional Globe, 1258.

237
confidence in the correctness of the principles which I here enunciated, I say to
them, in all candor and sincerity, ‘You are safe under this bill.’
465

On March 4, 1857, James Buchanan was sworn in as the 15
th
president. In his
inaugural address, he told the nation not to worry about slavery. “Besides,” he reasoned,
“it is a judicial question, which legitimately belongs to the Supreme Court of the United
States, before whom it is now pending, and will, it is understood, be speedily and finally
settled.” On March 5—the very next day—the Taney Court handed down its decision in
Dred Scott v. Sanford. Supposedly meant to calm the slavery storm, it only intensified it.
Dred Scott
With so many politicians in the federal government begging the Judiciary to save
them from the slavery issue, it would have been odd for the Court to dodge the
predicament. All contemporary Constitutional law scholars look at Dred Scott with
angst. Many consider it the worst decision in the history of the Supreme Court. Mark
Graber says that one of the three cardinal rules of American Constitutional theory is that
Dred Scott was wrong, and “Constitutionally evil.”
466
“No one,” he writes, “wishes to
rethink the universal condemnation of Dred Scott.”
467
Still, the decision of the Court
merely to accept the case and take on the issue is not inherently an “evil” choice. In fact,
there is much to be said in favor of that decision. Robert McCloskey puts it best, “There
was always the beguiling idea that a forthright statement from the Court might settle the
whole, terrible issue and retrieve simultaneously the cause of both the Union and the

465
Senator Judah P. Benjamin, 34
th
Congress, 1
st
Session. Congressional Globe, 1093-1094.
466
The other two are that Brown v. Board was right and Lochner v. New York was wrong.

467
Graber, Dred Scott, 15. Graber notes many Constitutional scholars who denounce the decision in Dred
Scott.

238
South.” Still, even McCloskey notes that Taney produced “the most disastrous opinion
the Supreme Court has ever issued.” Yet in taking on the case, McCloskey explains that
the Court could have solved a 30-plus year struggle on slavery in the territories.
Additionally, with sectionalism at all-time highs, civil war threatening Kansas, and Civil
War threatening America, “it would be tragic for the Court to withhold its hand, if that
hand might save the Union.”
468
Bernard Schwartz writes, “The Dred Scott case was the
one occasion when Taney yielded to temptation, always disastrous, to save the country,
and put aside the judicial self-restraint which was one of his chief contributions to our
Constitutional law.”
469

By 1856, the Legislature, the presidency, the Democrats, the Whigs, the North,
and the South all looked for an external institution to solve the slavery question. They all
had mentioned the Supreme Court, at one time or another. In 1820, the slavery issue was
represented by the Missouri debates; in 1854, by the Kansas-Nebraska feuds. In 1856,
the Dred Scott case was the slavery issue. With Washington stalemated, and the nation in
desperate need of resolution, the Supreme Court stepped in. Using its extra-political
institutional make-up, it tried to do what others could not: conclusively end the slavery
debate. The Court failed on two levels. It did not end the debate. The ruling incensed
Northerners. Slavery ultimately was not barred from the territories. The Republican
Party gained even more momentum. And, sadly, the Court did not spare the Union from
Civil War.

468
Robert G. McCloskey, The American Supreme Court (Chicago: University of Chicago, 2000), 61, 62.

469
Quoted in Fehrenbacher, 231.

239
Peter Blow owned Dred Scott before selling him to Dr. John Emerson, a surgeon
who gained a comfortable post in the military. At the time of the transaction, Emerson
was stationed in St. Louis. He never seemed to stay in one place very long, though. For
a variety of health excuses (including sickness because of cold, heat, and humidity) and
personal reasons (including squabbles with other military officers), Emerson became a
much-traveled surgeon. He went from Missouri to St. Paul, Minnesota, back to St. Louis,
then transferred to Louisiana, then back to Minnesota, southward to Florida, once again
to St. Louis, and finally to Iowa. Scott had accompanied him on many of his travels.
Most important, Scott had gone from a slave state through a free state to a free territory,
then back to a slave state. Meanwhile, he and his master had both married. Harriet Scott
actually had a series of parallel court cases as Dred made his way through the legal
system.
470
And after Emerson’s death, his wife, Eliza Irene Sanford became the slaves’s
owner, and the subsequent legal defendant.
On April 6, 1846, Dred Scott filed a petition in Missouri circuit court at St. Louis
claiming that he was free because of his time in a free state and free territory. The case
went to trial more than a year later. As counsel made their opening arguments, the odds
favored Scott. The Missouri supreme court had consistently ruled that transporting slaves
to live in a state or territory that was free effectively emancipated them. The state had
even accounted for military men taking their slaves to army bases located in free
territory. Scott’s attorneys needed to prove 2 things. First, they needed to show that
Scott had been taken into free soil. This was not an issue as a number of witnesses

470
See Lea VanderVelde, Mrs. Dred Scott: A Life on Slavery’s Frontier (Oxford: Oxford University Press,
2009).

240
testified to Scott’s presence in the north. Secondly, they had to show that Mrs. Emerson
claimed Scott as a slave. His attorneys planned on questioning Samuel Russell, who had
hired Scott via Mrs. Emerson. Unfortunately, when Russell took the stand, he claimed
that his wife had hired Scott and that he had not positively been told Scott was a slave.
Henry Blow also testified that his father, Peter, had sold Scott to Emerson. Still, with
nothing but secondhand testimony, the jury found for Mrs. Emerson. The decision was
the result of a minor technicality, and something that probably could have been fixed in a
very short amount of time. Fehrenbacher comments that the outcome “produced the
absurd effect of allowing Mrs. Emerson to keep her slaves simply because no one had
proved that they were her slaves.”
471

Naturally, Scott appealed. Two and a half years later, the case went to trial.
Scott’s lawyer produced Russell’s wife, who admitted that she had hired Scott, a slave,
from Emerson. Dred Scott won. And naturally, Emerson appealed, this time to the
Missouri supreme court. Another two years passed before the case finally went to trial.
Keep in mind, back in 1846, Scott had reason to believe that he had the Missouri supreme
court on his side. By 1852, though, Strader v. Graham had passed through the US
Supreme Court, giving Mrs. Emerson the foundation for a new argument. In the 1851
case, Graham, a Kentuckian, owned 3 talented slaves whom were sent to Ohio and
Indiana (both free states) to improve their musical skills. The slaves returned to
Kentucky, but with the help of Jacob Strader, they soon escaped. Graham sued Strader
for compensation. The abolitionist argued that the slaves’s time in free territory made

471
See Fehrenbacher, Dred Scott, 239-254.

241
them free, even after they returned to Kentucky. The Court dismissed Strader, saying
that it did not have jurisdiction over the case because it was a matter for Kentucky to
decide. Taney, who spoke for the majority, wrote, “It was exclusively in the power of
Kentucky to determine for itself whether their employment in another state should or
should not make them free on their return.”
472
Even though there were three opinions,
every Justice agreed on this point.
473

At the Missouri supreme court, Mrs. Emerson made the case that Missouri law
applied to Scott wherever he went. He did not become free merely by his presence in a
free state or free territory. No matter where he may happen to reside, Missouri law
overrode other statutes. This argument resonated with Southern jurists. While Strader
probably did play a significant role, we should also take stock of the setting. The
Missouri supreme court case went to trial at a time when sectional tensions were
mounting. The Compromise of 1850 had cooled tempers some, but in 1852, the state of
the Union was quite fragile, especially in the South. In addition, Dixie never passed up
an opportunity to stake out a states rights position on slavery. Fresh off the mid-century
crisis, and knowing that Nebraska would have to be dealt with soon, Missouri’s decision
in her supreme court case was not wholly a surprise. Fehrenbacher believes it was
“primarily an expression of mounting Southern anger and an act of retaliation against
anti-slavery words and deeds.” Although Strader provided a convenient excuse, this was

472
Strader v. Graham 51 U.S. 82 (1851).

473
See Dave Bridge, “Supreme Court Decision-Making in Slavery Cases.” Master’s Thesis. University of
Southern California (2007).

242
“the first time, but not the last, a court had used the Dred Scott case as a means of
determining public policy.”
474

Dred Scott had taken his case to Missouri’s highest court. The last line of appeals
would have to come through the federal judiciary, and sure enough, he turned to the US
Circuit Court in Missouri. In the meantime, Mrs. Emerson had sold Scott (and his
family) to her brother, John Sanford. In April 1854, Sanford filed a motion stating that
Scott was of “pure African blood,” and therefore did not have the right to sue in US
courts. The motion was dismissed. The case Dred Scott v. Sandford was heard a few
weeks later.
475
By May 1854, the nation was embroiled in the Kansas-Nebraska debate,
with Missouri in the thick of it. Of note, though, Sanford’s counsel did not challenge the
Constitutionality of the Missouri Compromise line.

Using Strader as the guiding legal
principle, the court found for Sanford.
As the final legal option, Scott turned to the US Supreme Court, which first heard
the case on February 11, 1856. The Court ordered a re-argument, citing the need to hear
more about jurisdictional issues and whether or not Scott could bring suit. More likely,
the Democrat-dominated Court did not want to issue a ruling in the months leading up to
the 1856 presidential election. So, in an effort to delay the case until after the election,
the Justices came up with an excuse. In any case, Dred Scott went to argument again on
December 15, 1856. Montgomery Blair—a rising Republican and soon-to-be Lincoln’s
postmaster general—represented Scott, and made the argument that blacks had the rights

474
Fehrenbacher, Dred Scott, 265. I do not disagree with Fehrenbacher, but he might underscore Strader’s
effect.
475
The defendant’s actual name is “Sanford.” The case is listed as Scott v. Sandford. The misprint is a
clerical error.

243
of citizens, or at least some sort of limited citizenship that allowed them access to the
courts. Reverdy Johnson represented Sanford, and was “probably the most respected
Constitutional lawyer in the country.” He was also an old friend of Taney’s. Johnson
argued that in order to bring a federal case, one had to be a citizen of the US, and either
born in the country or naturalized in some other way. He said that Scott was born a slave
(and therefore, not born a citizen), and even if his travels made him free, he had gone
through no such naturalization process. Therefore, he did not have the right to bring suit
in a federal court.
More importantly, for the first time, the attorneys discussed the Constitutionality
of the ban on slavery north of 36° 30!. They disputed the meaning of the clause reading,
“Congress shall have power to dispose of and make all needful rules and regulations
respecting the territory.” Sanford believed that “territory” meant only land, and that it did
not cover personal items, property, or slaves. Scott said making “all needful rules” meant
that Congress could ban slavery from the territories. The plaintiffs also pointed out that
Southerners had often acknowledged the ability of Congress to ban slavery in the federal
territories. They had been the main supporters of the Missouri Compromise, and they
had sought the extension of the 36° 30! line. Johnson shot back that the 1820 deal was a
“compromise of principle necessary to the existence of the Union.” The Judiciary had
never ruled on it, and therefore, one should not merely assume it Constitutionality.
Sanford’s lawyers also claimed that the restriction denied equal access to western lands
because Southerners could not move their property to the territories. Blair said that this
argument would mean that Congress would have to look to the lowest common

244
denominator in determining policy for the territories. States, Blair contended, did not
have rights in the territories.
The substantive arguments aside, the issue of the Missouri Compromise had
reached the Court. With Kansas-Nebraska fresh on everyone’s mind, the third branch
was at last pulled into the great Constitutional debate. Before the second round of oral
arguments in Dred Scott, the case was just about a single slave suing for his freedom.
Reverdy Johnson (and Blair, in response) gave elected elites what they had long been
asking for: a chance for the Supreme Court to step in and rule on the most controversial
issue in American politics.
At first, the Court did not get the hint. In fact, nothing really happened for a few
months after oral arguments. One reason could be that the Court did not want to proceed
until every Justice was present in conference. Justice Peter Daniel (the most ardent states
righter and Southerner on the Bench) had been absent a couple months after his wife died
when her clothing caught on fire.

When Daniel returned in mid-February 1857, the Court
proceeded immediately with Dred Scott. On February 14, 1857, the Justices conferenced.
There were three groups. The 5 Southern Justices took a pro-slavery, anti-black, and
anti-Missouri Compromise stance. Justice McLean (the only Republican) and Justice
Curtis (the only Whig) took an anti-slavery position. Justices Nelson and Grier, two
Northern Democrats, wanted to uphold Strader v. Graham and sustain the Circuit Court’s
decision. Not wanting to decide such an historic decision by a 5-4 vote, the Justices
decided to go with the Nelson-Grier position; Samuel Nelson of New York was assigned
to write the opinion of the Court.

245
Five days later, the Justices held another conference, where Nelson was stripped
of his majority opinion, and Taney was given the task of writing for the Court. There are
three reasons why this happened. First, Curtis and McLean let the Southern Justices
know that they were going to write scathing dissents. Never to be outdone by
Northerners, the Southerners on the Bench became defensive and reasoned that they
should write their own opinion. Secondly, if they were going to put in the effort, it might
as well be the majority opinion. Fehrenbacher notes, “The change of plan did spell
victory for those Justices who had wanted all along to issue an emphatically pro-Southern
decision.” And third, the Court realized that it was expected to step in and fix the
nation’s problems. The invites from Congress and the president, the oral arguments over
the Missouri Compromise line, the Kansas-Nebraska debate, the general sectional
hostility—in the five days since first conferencing, the Court had become aware of all of
these things. While the switch to Taney could (and should) be viewed partly as a
Southern power play, it could (and should) also be seen as an attempt by the Court to step
into a tempestuous issue where no one had had success. Nelson’s opinion would not
have created a stir, but it would not have put an end to the slavery-in-the-territories
problem. Taney’s opinion was controversial, to say the least, but unlike Nelson’s, it had
the ability to put the issue to rest.
Altogether, seven Justices wrote opinions. A couple of the opinions are known
more for their sectional attachments than their legal pronouncements. Ever the Southern
stalwart, Justice Daniel contended that not only were slaves property, but they were
specifically protected by the Constitution (via the fugitive slave clause) as a special kind

246
of property. Meanwhile, Justice McLean—still hoping to become president one day—
“indulged his weakness for playing to the antislavery gallery.” Three of the opinions
stand out. Taney wrote an opinion that, at the time and looking back, has become the
opinion of Court. Benjamin Curtis penned the main dissent, which took on the standard
anti-Taney viewpoint. And Nelson’s remarks, originally promised the majority position
but later a concurrence, displayed a more restrained tone. The table below shows how
each Justice voted on a variety of issues.
476

Table 54. Dred Scott.
Taney Wayne Daniel Camp-
bell
Cat-
ron
Nel-
son
Grier Cur-
tis
Mc-
Lean
Court had
juris-
diction
X X X X
Blacks
could not
be citizens
X X X
Blacks
eligible
for citizen-
ship
X X
36° 30!
line was
uncon-
stitutional
X X X X X X
36° 30!
line was
consti-
tutional
X X
Scott still
a slave
X X X X X X X
Scott had
become
free
X X

476
See Fehrenbacher, Dred Scott, 279, 282, 300-301, 305, 311, 414. The table is taken from Fehrenbacher’s
“box scores,” which present the data in a different fashion. Still the content comes from his book. See
Fehrenbacher, Dred Scott, 324 & 327.

247
At base, the main points of Taney’s opinion were that Scott did not have standing
and the Missouri Compromise line was unconstitutional. Taney ruled that blacks were
not citizens, could not become citizens, and therefore did not have the right to bring suit
in US courts. He asked “whether the provisions of the Constitution…embraced the negro
African race.” He answered, “The Court think the affirmative of these propositions
cannot be maintained.” Clearly, Taney writes, “it cannot be believed that the large
slaveholding states regarded them as…citizens.” Moreover, the Declaration of
Independence did not incorporate blacks because, surely, it was meant only to include
white men. And this was really the driving force behind Taney’s logic: white people
never meant for black people to be citizens. “They [blacks] had for more than a century
before been regarding as beings of an inferior order,” Taney wrote, “and altogether unfit
to associate with the white race, either in social or political relations.” Next came the
infamous line, “and so far inferior, that they had no rights which the white man was
bound to respect.”
477
Fehrenbacher tries to mitigate the harshness by saying that Taney
was only trying to describe “the state of public opinion at the time of the founding of the
Republic. He did not declare that such a view still prevailed in 1857.”
478
Fehrenbacher
argues that the line is often taken out of context. I’m not so sure. No doubt, Taney does
try to bring in 18
th
century public opinion, but the general tenor is just plain racist. And
taken in that context, it would come as no surprise if Roger B. Taney truly believed and

477
Scott v. Sandford 60 U.S. 393 (1856).

478
Fehrenbacher, Dred Scott, 347.

248
ruled that blacks had no respectable rights. At any rate, the Court ruled that Dred Scott
did not have standing, and the Court could not hear the case.
At this point, many historians fault Taney for not ending his opinion right there.
They reason: if the Court did not have jurisdiction, then there was no reason to hear the
case, and there certainly was no reason to rule on any other matter involved in Dred
Scott. Modernists claim Taney should have sent the case back down to the lower court
with instructions to dismiss the suit. Interestingly, the Chief Justice himself discusses
this in his opinion. Often unnoticed, Taney actually provides solid reasoning for his
forays into post-jurisdictional issues. Immediately following his pronouncement on
blacks as non-citizens, he takes a moment to discuss the reach of the Court. “Before we
proceed…” he writes, “it may be proper to notice an objection…[stating that the Court]
has no right to examine any question presented by the exception; and that anything it may
say upon that part of the case will be extra-judicial, and mere obiter dicta.” Taney says it
would be a “manifest mistake” to believe the Court could not delve into other issues
presented by the case. He says that the Supreme Court can review all parts of an
appealed case, “and to reverse it for any error apparent on the record.” The emphasis is
added, but important. If Taney could have but italicized “any,” it might have quelled
some of the controversy surrounding the obiter dictum charges. More clearly, Taney
says, “the whole record is before this Court for examination and decision…it is the
judicial duty of the Court to examine the whole case.” Getting ready to transition to the
other major part of his decision, the Chief explained, “It is the duty of the appellate

249
tribunal to correct this error; but that could not be done by dismissing the case for want of
jurisdiction here.”
479

Performing his duty, Taney went on to consider whether Scott’s time in a free
state and/or free territory emancipated him. Taney’s look into the “free state” strand of
the argument was “very brief; for the principle on which it depends was decided in this
Court.” He stuck to Strader v. Graham and explained, “As Scott was a slave when taken
into the state of Illinois by his owner, and was there held as such, and brought back in
that character, his status, as free or slave, depended on the laws of Missouri, and not of
Illinois.” Taney then discusses counsel’s argument that the laws of Missouri made Scott
free on return to that state. But, Taney says, a close examination of cases decided in state
courts show that Missouri meant for Scott to remain a slave. Moreover, the high court of
Missouri had made a decision on Scott, and it was not within the Court’s jurisdiction to
overturn state supreme court decisions when they did not conflict with the US
Constitution.
Finally, Taney’s discussion of Scott’s slave status in Louisiana Territory north of
36° 30! became the most controversial part of the opinion. He explained that the Fifth
Amendment provided protection against taking life, liberty, and property without due
process. Slaves were property, and not allowing a man to take his property into a
particular part of the country was unconstitutional. In quite clear prose, Taney asserted:
An act of Congress which deprives a citizen of the United States of his liberty or
property, merely because he came himself or brought his property into a particular
territory of the United States, and who had committed no offense against the laws,
could hardly be dignified with the name of due process of law.

479
Scott v. Sandford.

250
If one accepts the assumption that slaves were property, then Taney provides a
somewhat compelling logic. Relying mainly on the fugitive slave clause, he contends,
“the right of property in a slave is distinctly and expressly affirmed in the Constitution.”
In addition, the Constitution does not give Congress the right to treat slave property any
differently from ordinary property. In fact, the only power conferred upon Congress in
regards to slavery “is the power coupled with the duty of guarding and protecting the
owner in his rights.” Taney then deals the final blow to the Missouri Compromise line:
Upon these consideration, it is the opinion of the Court that the act of Congress
which prohibited a citizen from holding and owning property of this kind in the
territory of the United States north of the line therein mentioned, is not warranted
by the Constitution, and is therefore void.
480

Justice Nelson’s opinion in Dred Scott v. Sandford would also have kept Scott in
bondage. However, it would have done so with the restrained tone and dictum that
modern scholars have called for. Nelson wanted to uphold the Circuit Court’s decision,
which largely relied on Strader v. Graham. Indeed, Nelson’ opinion is largely a
memorial to Strader. He believed that it was up to the individual states to determine their
respective policies regarding the importation and exportation of slaves. “Every state or
nation possess an exclusive sovereignty and jurisdiction within her own territory; and, her
laws affect and bind all property and person residing within it,” Nelson wrote. Obviously
then, “no state or nation can affect or bind property out of its territory, or persons not
residing within it.” Thus, it was up to Missouri to determine her laws on slavery. Now,
Nelson deals with a counter-argument here, which Scott’s counsel brought up during
orals. If each state gets to determine its own laws, then wasn’t Scott freed when he went

480
Scott v. Sandford.

251
to Illinois? Yes, Nelson says; Scott’s his time in Illinois made him free. Why? Because
Strader allows every state to determine its own policy; and Illinois operated under a free
state constitution. The precedent used to keep Scott a slave upon return to Missouri was
the same logic it freed him in a free state. Counsel then contended that if Scott had been
free, he remained such. He could not have been re-enslaved, could he? Yes, Nelson
says; because Missouri law called it. That is, Missouri said previous slaves taken into
free states and returned to Missouri were still slaves.
481
Illinois laws did not govern
Missouri, or vice versa. “They stand upon an equal footing,” Nelson declared, “Neither
has any force extra-territorially.”
Having dealt with slaves once they come back from free states, Nelson then
turned to the free territory part of the argument. He said, “It must be admitted that
Congress possesses no power to regulate or abolish slavery within the states.” However,
Congress could indirectly regulate slavery by permanently emancipating all slaves who
came into territory designated as free. For example, consider a slave who went from
Missouri to Minnesota and back to Missouri, like Dred Scott. If that slave became
instantly and permanently free upon his arrival in free territory, then his re-entrance into
Missouri would be as a freeman. But that would conflict with Missouri state law, which
still declared him a slave. Keeping with his pro-Strader opinion, Nelson said such a law
would be void. However, this did not mean that a Congressional ban on slavery in the
territories was unconstitutional. The Missouri Compromise line was legit. There were

481
Of course, this itself is disputable. Remember, in 1846, Missouri law pretty clearly emancipated this
class of people. Then again, by 1857, the Missouri supreme court had ruled against such a law. Plus,
Taney seemed to think that Missouri re-enslaved transported blacks.

252
just strings attached—“the act of Congress [36° 30!] is valid within the territory for which
it was enacted, [but] it can have no operation or effect beyond its limits, or within the
jurisdiction of a state. It can neither displace its laws, nor change the status or condition
of its inhabitants.”
482
Thus, if a slave went from a slave state to free territory and back to
the slave state, he went from slave to free to slave, much like a sojourn into a free state
would work. Put simply, Nelson called for home rule. Wherever a slaveholder might
take his slave, he needed to be informed of that area’s local laws on slavery.
Justice Curtis challenged both of the major tenets of Taney’s opinion. First,
Curtis believed that blacks were citizens of the United States. He wrote, “Under the
Constitution of the United States, every free person born on the soil of a state, who is a
citizen of that state by force of its constitution or laws, is also a citizen of the United
States.” Thus, if one could show state citizenship, then one would concurrently be a
national citizen. For Curtis, the key was in recognizing that state citizenship pre-dated
the Constitution. To determine if blacks were US citizens, “it is only necessary to know
whether any such persons were citizens of either of the states under the [Articles of]
Confederation…Of this, there can be no doubt.” Curtis explains that five states (New
Hampshire, Massachusetts, New York, New Jersey, and North Carolina) declared “all
free native-born inhabitants” to be citizens. In fact, those states even granted the
franchise to free blacks. When the Constitution was ratified, free blacks in those states
took part in legitimizing the new government.

482
Justice Samuel Nelson’s concurrence in Dred Scott v. Sandford.

253
Curtis also takes on the assertion that the Constitution was made exclusively for
whites. He believes it is “not only an assumption not warranted by anything in the
Constitution, but contradicted by its opening declaration, that it was ordained and
established by the people of the United States, for themselves and their posterity.” Since
5 states had black-citizenship rights, then free blacks were “in every sense, part of the
people of the United States…among those for whom and whose posterity the Constitution
was ordained and established.” In addition, citizenship was not necessarily tied to
political or civil rights. He wrote that women, blacks, or young white men over a certain
age might be eligible for citizenship without having the right, say, to vote or hold office.
In sum, all “free native-born citizens of each state are citizens of the United States…[and]
color is not a necessary qualification for citizenship under the Constitution of the United
States.”
483

Of course, the qualifier in Dred Scott’s affair was whether or not Scott was free.
Curtis did not go so far as to say that black slaves were citizens; in fact, he seemed to take
care to distinguish between slaves and free blacks. Thus, if Scott was still a slave, he was
not a citizen of any state, and therefore not a citizen of the United States, and therefore
not able to bring suit in a US court. After laying the obvious foundation that Congress
banned enslavement north of 36° 30!, Curtis proceeded to show that the Legislature
meant to completely bar slavery from the territory. He shows that part of the Missouri
Compromise included an exception for fugitive slaves. That is, fugitives who made it
past 36° 30! still remained slaves. This was key for Curtis, because “an exception form a

483
Justice Benjamin Curtis’s dissent in Scott v. Sandford.

254
prohibition marks the extent of the prohibition.” If Congress made note to say that
fugitive slaves remained slaves north of 36° 30!, then the Legislature must have meant
that all other blacks in the territory were free. So, for example, if a master brought his
slave into Wisconsin, that slave became free once he was brought out of the slavery-
protected area. Curtis quoted a dissent from one of Scott’s earlier cases in Missouri:
“The master who takes his slave to reside in a state or territory where slavery is
prohibited, thereby emancipates his slave.”
The Associate Justice also took on Taney’s annulment of the Missouri
Compromise line. His logic was fairly simple: the Constitution said that Congress could
make “all needful rules and regulations respecting the territory or other property
belonging to the United States.” Despite what Southerners might say, there was no
clause that granted slavery special protection from Congressional supervision. Very
simply, “No other clause of the Constitution…imposes any restriction or makes any
exception concerning the power of Congress to allow or prohibit slavery in the territory.”
Plus, Curtis said, the federal government has dealt with slavery in the territories on a
number of occasions. He highlighted the Northwest Ordinance and its ban on slavery.
He also pointed out a cession by North Carolina of western territory. One of the
stipulations of receiving the land was, “Provided, always, that no regulations made or to
be made by Congress shall tend to emancipate slaves.” Sure enough, the territory was
open to slavery; and when it applied for statehood as the state of Tennessee, it came in as
a slave state. He explained that the two examples showed that Congress could prohibit or
allow slavery in the territories. Curtis plainly asks, “What positive prohibition exists in

255
the Constitution which restrained Congress from enacting a law in 1820 to prohibit
slavery north of 36° 30! north latitude?”
Curtis admitted that perhaps the Due Process Clause of the Fifth Amendment, as
mentioned by Taney, applied to the Missouri Compromise line. At base, though, this
argument did not suffice because slavery had to be protected by positive law before it
could fall under due process. “Slavery, being contrary to natural right,” Curtis wrote, “is
created only by municipal law…And not only must the status of slavery be created and
measured by municipal law, but the rights, powers, and obligations, which grow out of
that status, must be denied, protected, and enforced, by such laws.” In essence, Curtis
believed that slavery was so unnatural that in order for it to be legal, it had to be created
and protected by a local government. Free soil was the default position. And Curtis
could not understand how due process applied when there was no law sanctioning it in
the territory. Taney’s opinion, therefore, was wrong in every respect. Most notably,
Curtis thought the Chief’s use of judicial review was an abortion—“Such an exertion of
judicial power transcends the limits of the authority of the court.”
Conclusion
It is impossible to talk about the historical significance of Scott v. Sandford
without mentioning Mark Graber’s work on the case. Graber has published two separate
pieces on the case that describe its role in political time. In a foundational 1993 article,
Graber coined the “nonmajoritarian difficulty,” the idea that some seemingly
“countermajoritarian” Supreme Court decisions are, in fact, “nonmajoritarian.” That is,
the polity is so evenly divided that the opinion cannot appeal to the majority. In Graber’s

256
article, he talks about how party leaders deferred on slavery. He writes, “The politicians
most interested in compromise virtually begged the Supreme Court to decide the
Constitutional status of slavery in the territories.”
484
Graber’s other work, a full-length
book titled Dred Scott and the Problem of Constitutional Evil, looks at the dilemma
facing America when a particular issue splits the country so deeply and closely that
resolution becomes difficult and bitter. Obviously, slavery qualifies as one of those
issues, and Graber believes that Dred Scott would have allowed the political system to
continue its compromising on slavery.
My model builds on Graber’s theses. He provides the nonmajoritarian idea, as
well as the notion that some issues just cannot be solved legislatively. I take his work
and place it in political time to show that at the end of the realignment cycle, the
governing party will weaken because its own members will disagree on highly salient
issues. Meanwhile, the Supreme Court will be staffed almost entirely (if not entirely) by
pro-regime Justices. The Court will have a stake in maintaining the continuation of
regime rule. That is, they will want to fulfill the regime’s political goal. In Stage 3, this
means taking the divisive issue off the table. Elected officials will not be able to do so
because resolving the issue implies hurting the electoral chances of one ideological wing
of the regime. The Justices do not face these limitations though, and party leaders can
use this institutional facet of the Court to dispose of the troublesome issue.
Indeed, this is how the antebellum period played out. Democrats came to power
in 1828 because of the backlash against the corrupt bargain, Jackson’s popular appeal,

484
Graber, “Nonmajoritarian,” 46.

257
and a more democratic and agrarian vision for America. Once in power, Jackson sought
to consolidate his party by removing Indians. The strategy worked and the now-stable
regime turned to implementing its consensus policies—like states rights jurisprudence
and reducing tariff duties. Once those goals were accomplished, slavery became more
salient and split the coalition. The regime faced a pair of demands that conflicted with its
political and policy goals. It had to resolve the extension issue because, policy-wise, the
country was expanding and needed quick solutions. But in proposing solutions,
Southerners became estranged from Northerners, and vice versa. Soon, passing any
solution meant destroying one ideological/sectional wing of the regime, which totally
conflicted with the political goal of the regime (i.e., to stay in power). Party leaders
sought to resolve the policy issue without facing the political consequences by passing
the buck to the Supreme Court. The table below indicates the political development of
the Court within the regime.
Table 55. Supreme Court model in Jacksonian era.
POLITICAL IDENTITY OF THE COURT
Affiliated Opposed
Vulnerable Maintenance
(slavery)
[Unlikely scenario]
485

STRENGTH
OF THE
REGIME
Resilient Implementation
(states rights)
Consolidation (Indian
removal)

In Stage 3, the regime can turn to the Court because no other institution can
provide the regime with the same set of tools. Congress will be beyond compromise, and
it will want to avoid a showdown vote. The president will likely be a dark horse with

485
Regimes are likely to be weak after they have existed for sometime. That existence, though, necessitates
a good number of appointments to the Supreme Court. Thus, it is difficult to imagine an unaligned Court
and a weak regime.

258
unclear preferences, selected for those exact reasons. Meanwhile, the Court can still
resolve the issue. Slavery provided an especially opportune deferral: not only did the
regime disagree on the policy implications, but they also had conflicting notions of the
Constitutionality of the slavery issue. That said, since these disagreements had existed
since Missouri, then why did it take so long to ask the Court to step in?
486
The answer
lies in the concept of political time. In Stage 1, the Court did not have the proper
personnel—it was not aligned with the regime. In Stage 2, the regime was strong, and
not worried about holding itself together. By Stage 3, though, the combination of
Supreme Court-Regime alignment and Regime Strength dictated that the timing was ripe
to defer slavery to the Court.

486
One answer might be that the regime had asked the Court in the past, a la the Clayton Compromise.

259
Chapter 5: Republican Era—Stage 1
In 1860, the United States experienced a critical election. The results of that
realignment, though, led to the Civil War, and an unstable polity. By the end of the war,
everything political had changed. Namely, the issue that had brought the Republicans to
power, anti-extensionism, was no longer an issue. As the party that won the war and held
the Union together, the Republicans were still popular in the North. They still dominated
federal politics, especially since the South was excluded from Congress. And coming out
of the war, everyone knew what the dominant issue would be: reconstruction. The
question up for grabs was: What would be the party line? As the party worked through
that question, the Court did the same; and the Court’s initial decisions were not in line
with the party’s majority. Yet, those decisions were important in helping formulate what
the elected wing of the regime would do. By ruling against military courts and loyalty
oaths, the Court brought those issues to the attention of the regime. A consensus reaction
to those issues helped consolidate the Republican coalition in 1866 and 1867.
This chapter examines the early part of the postbellum Republican regime. I start
by looking at Lincoln’s plan for Reconstruction, then go into the Congressional response.
I next examine Andrew Johnson’s presidency, and the issues of Reconstruction that
surrounded the first year of his administration. I then explain Supreme Court cases that
ran counter to the dominant will of the Republican regime. Afterwards, the chapter looks
at the response to those decisions. I conclude with a discussion about how the early
Chase Court fits into political time. I explain how Stage 1 Courts can expect to run
counter to the will of the governing regime, and how the regime can use that to its

260
advantage. Specifically, the regime can use the Court to consolidate the coalition. I close
by comparing and contrasting the Stage 1 Republican Court to the Stage 1 Jacksonian
Court.
Lincoln’s 10% Plan
Official government policy on Reconstruction started well before the Civil War
ended. With some of the rebel states (e.g., Louisiana and Tennessee) captured and partly
secure, Lincoln began the process of bringing them back into the Union as soon as
possible. By the end of 1863, a full 16 months before Lee surrendered, Linocln
announced his vision for Reconstruction of the South. On December 8, 1863, Lincoln
issued his Proclamation of Amnesty and Reconstruction. It laid out the terms under
which Southern citizens and Southern states would be welcomed back into the Union.
The most notable stipulation was that the Emancipation Proclamation would still be in
effect. After 75 years of compromising and avoiding slavery, the Civil War would decide
the issue one way or the other. Lincoln offered rebels amnesty from secession so long as
they were willing to take an oath to support the US and the Constitution in the future.
The oath was forward looking, and made no mention of whether or not one had opposed
the federal government during the war. The amnesty was “a full pardon…with
restoration of all rights of property, except as to slaves.”
486
Some rebels were excluded
from the amnesty deal (see table), but it left the door open for a large majority of
Southerners to come back into the Union. Lincoln defended the practicality of the oath,
“There must be a test by which to separate the opposing elements.” He defended the

486
Abraham Lincoln, “Proclamation 108: Amnesty and Reconstruction” The American Presidency Project
(8 December 1863).

261
legality of the pardon by pointing out that the Constitution authorized the Executive to
grant absolute pardons. The oath was legal because no one would force rebels to take
it.
487

Table 56. Amnesty.
Those Excluded from Amnesty Example
Civil or diplomatic officers of the Confederacy Jeff Davis
Judges who left the US to join the rebellion John Campbell
Army commanders above the rank of colonel & naval
commanders above the rank of lieutenant
Robert E. Lee
Congressmen who left the US to join the rebellion John Breckinridge
US soldiers who left the US to join the rebellion Robert E. Lee
All who treated black prisoners of war (or their white
commanders) unfairly

The Amnesty Proclamation also declared a state ready to re-enter the Union if
one-tenth of its citizens could take the oath. The state would also have to abolish slavery
and re-write its state constitution. The one-tenth figure probably came from the fact that
currently occupied rebel states showed about 10% of the population voting in
elections.
488
Lincoln believed that he had the authority to call for new governments in the
South because the Constitution called for a guarantee to every state a republican form of
government.
489

The abolition, pardon/oath, and 10% features were the most prominent parts of
Lincoln’s Proclamation of Amnesty and Reconstruction. Other items are worth noting
too. For starters, it did not call for either black suffrage or black civil rights.

Because so

487
Abraham Lincoln, “1863 State of the Union Address” The American Presidency Project (8 December
1863).

488
Herman Belz, Reconstructing the Union: Theory and Policy During the Civil War (Ithaca, NY: Cornell
University Press, 1969): 165.

489
Lincoln, “1863 State of the Union Address.”

262
many would be eligible for a pardon—and because the pardon restored all land—there
was no plan for large-scale confiscation of Southern property.
490
Lincoln did not touch
upon Congressional representation for the South because it rested “exclusively with the
respective Houses [of Congress].”
491
He also noted that the Legislature and Judiciary
could modify or abrogate the oath he laid out.
492
These statements were characteristic of
Lincoln’s flexibility in dealing with Reconstruction. He had already been using different
plans: leniency in Louisiana and sternness in Tennessee (under Andrew Johnson). The
Proclamation even closed, “It must not be understood that no other possible mode be
acceptable.”
493
Altogether, Lincoln’s plan aimed to re-integrate rebel states as quickly as
possible. Generous pardons, forward-looking oaths, 10% requirements, a perceived
willingness to work with the other branches—all these conditions pointed towards a
merciful path to re-entry.
In addition, Lincoln saw his Amnesty Plan as a way that might possibly help
bring an end to the war. If Southerners believed that the punishment for secession would
be light, they might be more inclined to drop The Cause and come back into the Union.
With only a minority ineligible for pardons, new state governments could attract broad
support. The oath would ensure that only loyal men would run Southern governments.
494

Even the obligation to stick to the Emancipation Proclamation was probably done out of

490
Eric Foner, Reconstruction: America’s Unifinished Revolution (New York: Harper and Row, 1990): 36,
51.

491
Lincoln, “Amnesty and Reconstruction.”

492
Lincoln, “1863 State of the Union Address.”

493
Lincoln, “Amnesty and Reconstruction.”

494
Foner, 62.

263
necessity. Emancipation was a military measure designed to win the war. The possibility
of reneging on it might have hurt the war effort. It could have reduced black troop
enlistments, lost the support of abolitionists, or given England a reason to enter the war.
Lincoln justified almost everything he did with saving the Union.
495
As one historian
notes, “However crude we may now consider Mr. Lincoln’s system, it should not be
forgotten that with him the paramount consideration was the overthrow of the
Confederacy.”
496

Response to Lincoln’s Plan
For the most part, the Amnesty Proclamation met a positive initial response.
Republicans did not generally speak out against it. One Republican mentioned his
uneasiness with allowing a state back in with “a mere tithe of its citizens.”
497
Ignatius
Donnelly might have criticized the policy, but his comments were mostly constructive.
He said that it was too contingent on future Congresses and future Supreme Courts
upholding it. While the president’s announcement was certainly merciful, it did not ask
for revenge. “We owe more than this to ourselves,” Donnelly exclaimed, “we owe more
than this to the South.”
498

495
See Daniel Farber, Lincoln’s Constitution (Chicago: University of Chicago Press, 2004).

496
Charles Hallan McCarthy, Lincoln’s Plan for Reconstruction (New York: McClure, Phillips & Co.,
1901): 496.

497
Representative Thomas Williams, 38
th
Congress, 1
st
Session. Congressional Globe, 1975-1980.

498
Representative Ignatius L. Donnelly, 38
th
Congress, 1
st
Session. Congressional Globe, 2038.

264
Democrats offered sharper criticism. Illinois Democrat J.C. Allen put it bluntly,
“It is not worth the paper upon which it is written.”
499
One partisan said, “We
[Democrats] believe the President’s schemes…to be gross infractions of the
Constitution…from which no sophism of ‘war power’ can absolve him.”
500
Samuel Cox
explained that Congress could not expect “saddened” and “irate” secessionists to rush the
White House for pardons. But for Cox, the “chief defect” was the Emancipation
Proclamation. Altogether, Lincoln’s plan was “a rickety establishment.”
501
Another
Democrat called it “a monstrous usurpation of the rights of the states,” which led to “a
centralized despotism.”
502
Nehemiah Perry detailed why the plan was a “mockery of an
amnesty.” For starters, Perry exclaimed, “The president has no right to declare a general
amnesty.” In addition, the Congressman believed that a pardon could only come after a
man had been tried, found guilty, and sentenced. Since no Southerner had gone through
the judicial process, they were not eligible for clemency.
Congressman Perry then leveled a charge on the president that would become a
major theme of Democratic complaints against the opposition. Perry described how the
plan would quickly bring Southern representation back to Congress. He said, “Here the
president’s design is perfectly evident, to secure a majority of the delegates to the
nominating convention of his party, and to provide for his own election by the House of

499
Representative J.C. Allen, 38
th
Congress, 1
st
Session. Congressional Globe, 1738.

500
Representative Myer Strouse, 38
th
Congress, 1
st
Session. Congressional Globe, 2044.

501
Representative Samuel S. Cox, 38
th
Congress, 1
st
Session. Congressional Globe, 2095-2096.

502
Representative James Cravens, 38
th
Congress, 1
st
Session. Congressional Globe, 2049.

265
Representatives in the event of there not being an election by the people.”
503
Claims of
partisanship would soon become commonplace in Congressional debate. Augustus
Baldwin directed his indictment at the whole party, saying the Proclamation was intended
to perpetuate Republican rule, not to restore states to the Union.
504
J.C. Allen exclaimed,
“That is was intended to increase the president’s power on the floor of the House and of
the Senate, and more particularly in the Electoral College, are facts too palpable to be
successfully controverted.”
505
Perry’s final accusation seemed almost personal: “I
denominate the whole plan a political trick worthy of the most adroit and unscrupulous
wire-puller of our ward primary meetings.”
506

Despite Democratic opposition, Lincoln had formulated a Reconstruction policy
that seemed to satisfy all factions of the Republican Party in 1863. There is debate in the
literature as to how the Amnesty Proclamation stacks up against Radicals and
Conservatives. Herman Belz writes, “Lincoln’s message and proclamation agreed more
with the Radical than with the Conservative position of December 1863.” Yet Belz also
points out that the 10% feature was not radical at all, and has been “considered lenient
toward the South, and therefore conservative.” Still, Radicals strongly supported Lincoln
after the plan’s announcement.
507
Meanwhile, William C. Harris disagrees,

503
Representative Nehemiah Perry, 38
th
Congress, 1
st
Session. Congressional Globe, 2073.

504
Representative Augustus C. Baldwin, 38
th
Congress, 1
st
Session. Congressional Globe, 1981-1983.

505
Allen, 1738.

506
Perry, 2073.

507
Belz, 160, 164, 166.

266
“Fundamentally, Radicals were appalled by Lincoln’s conservatism.”
508
Though
Radicals, Moderates, and Conservatives might all have some disagreements with
Lincoln’s plan, it offered enough to each group to warrant support.
Perhaps the most important thing to keep in mind when looking at Radical
opinion of Lincolnian Reconstruction is to remember that these were not the Radicals of
1867. Congressional Radicals in 1863 concerned themselves mainly with ensuring that
the Emancipation Proclamation would remain in effect after the war. Although some
Radicals opposed the plan, they publicly agreed because Lincoln had promised their
crucial issue.
509
One writer comments that Radicals “had heard the one thing they had
wanted to hear: slaves would be freed throughout the South, slavery would not be
restored.”
510
Although we take it for granted now that slavery had to be cut off as a result
of the war, even the Great Emancipator had second thoughts about dealing with the
peculiar institution. In fact, in 1863, after the Emancipation Proclamation went into
effect, Lincoln called a Cabinet meeting to discuss compensated emancipation. Only
unanimous opposition in the Cabinet forced him to drop it. Lincoln’s ultra-conservative
Secretary of the Navy, Gideon Welles, had even remarked, “There may be such a thing as
overdoing.”
511
With such indecision, the Amnesty Proclamation must have pleased
Radicals. The follow-up, the 1863 State of the Union Address probably delighted them

508
William C. Harris, With Charity for All: Lincoln and the Restoration of the Union (Lexington, KY:
University Press of Kentucky): 234.

509
Foner, 36.

510
John C. Waugh, Reelecting Lincoln: The Battle for the 1864 Presidency (New York: Crown Publishers,
1997): 69-71.

511
Quoted in Foner, 73-74.

267
more. Lincoln put it simply, “I shall not attempt to retract or modify the Emancipation
Proclamation.”
512

At the time, Radicals also pushed for rebels to take an oath of allegiance to the
country and the Constitution. That an oath was included is probably another win for the
Radicals. However, the oath was not the “ironclad” oath that forced its takers to disavow
any allegiance ever to the Confederacy. Instead, Lincoln’s oath looked forward,
requiring its subscribers never to rebel again. While the Moderates did not believe in
anyone having to take an oath, the one Lincoln laid out was quite gentle in terms of what
had to be pledged, and who could take it. In addition, conservatives had a lot to like in
Lincoln’s plan. Not only did Lincoln promise not to confiscate land, but he also offered
most rebels a full pardon that would restore their land. The Constitutional justification
for Reconstruction maintained that the states had never left the Union, and therefore
Congress had no need to exact revenge by making them go through the territorial stages
of government. Lincoln also conceded that the Emancipation Proclamation would be
subject to the Supreme Court. Again, the key is that Radicals in 1863 were not yet
pushing for land redistribution, extended civil rights, or black suffrage. They wanted an
end to slavery in the South and perhaps a required oath for reunited rebels. Lincoln met
those qualifications, but made the oath as light as possible. Beyond that, the president’s
plan did nothing else. Thus, he courted Radicals by giving them their salient issues;
simultaneously, he won over Moderates and Conservatives by handing over no more than
the minimum.

512
Lincoln, “1863 State of the Union Address.”

268
With such a broad plan that included something for everyone, it is no surprise that
it drew favorable reviews. Lincoln’s personal secretary, John Hay, reported that the
immediate effect of the plan was “something wonderful” and that radicals in Congress
were quite pleased. Charles Sumner beamed; Zachariah Chandler seemed delighted.
513

George Boutwell said Lincoln’s plan was “able” & “shrewd” and “it is right.”
514
Henry
Wilson of Massachusetts declared that Lincoln had “struck another great blow” for
freedom. Conservatives also approved. James Dixon and Reverdy Johnson (a War
Democrat) called it “highly satisfactory.”
515
Kentucky Representative George Yeaman
said that he might differ from the president on some of the details, but that he was
gratified by the Amnesty Proclamation’s flexibility, Constitutional reasoning, and
openness to judicial interpretation.
516
The Conservative John Ten Eyck agreed with the
Constitutional reasoning, claiming that Lincoln “hit the nail upon the head.”
517
Fernando
Beaman called the plan “a safe reconstruction of the government.”
518

Of what little criticism thrown at the Proclamation of Amnesty and
Reconstruction, almost all of it dealt with separation of powers. That is, while
Congressmen might have approved Lincoln’s plan, they still thought enactment lied with
the Legislature. Of course, Democrats believed that Lincoln had overstepped his

513
Quoted in Waugh, 69-71.

514
Quoted in Belz, 170.

515
Quoted in David Donald, Lincoln (New York: Touchstone, 1996): 473.

516
Representative George H. Yeaman, 38
th
Congress, 1
st
Session. Congressional Globe, 191.

517
Senator John C. Ten Eyck, 38
th
Congress, 1
st
Session. Congressional Globe, 98.

518
Representative Fernando Beaman, 38
th
Congress, 1
st
Session. Congressional Globe, 1246.

269
institutional bounds. J.C. Allen supposed the president did not have the Constitutional
power to enforce his Proclamation, except by the force of the army. “I need not say that
such powers are not only dangerous to civil liberty, but that their exercise is military
usurpation,” he reasoned. Garrett Davis of Kentucky submitted a resolution stating that
neither Congress nor the president had the authority to enact the Amnesty’s features.
Policy-wise, the Republican administration had much in common with the
Republican Congress; but they both “staked out independent claims to ultimate
responsibility for reconstructing the South.”
519
John Waugh says Lincoln was “loath to
leave the process…to the vindictive Radicals in Congress.”
520
Although Lincoln did not
want exclusive domain over reconstruction, he took the opportunistic opening to make
the first move.
521
Some Republicans in Congress even supported the president’s foray
into the issue. Boutwell cried, “Up to this time, no efficient, indeed no legislative steps
whatever have been taken.” He claimed that the federal government needed some kind of
policy on reconstruction; and without a Congressional program, Lincoln took it upon
himself to create one. “The president has initiated steps for the organization of civil
authority,” Boutwell said, “and in the absence of legislative action here I hold it to have
been his duty to take steps in that direction.”
522
Martin Russell Thayer agreed,
“Congress, by its inaction up to the present time, has rendered it necessary…The pressing

519
R.N. Current, “The Friend of Freedom,” in Reconstruction: An Anthology of Revisionist Writings, ed.
Kenneth Stampp (Baton Rouge: Louisiana State University Press, 1996): 23.

520
Waugh, 63.

521
Belz, 160.

522
Representative George S. Boutwell, 38
th
Congress, 1
st
Session. Congressional Globe, 2102.

270
necessities of the case demanded executive action in the absence of action here.” Thayer
went on to say that Lincoln would have violated the presidential oath had he done
nothing.
Yet even Thayer had qualms as to Lincoln’s supposed authority on the issue. He
explained that while the president’s Proclamation had been warranted, “it is the duty of
Congress to put an end to the necessity which existed for executive action…Congress
alone can enact the laws which are to reconstruct the political societies in [the South].”
523

Other Republicans agreed. Nathaniel Smithers did not trust presidential proclamations.
“I prefer to rest the security of the Republic upon the safer and more irrefragable basis of
Congressional enactments,” he said.
524
Another Republican did not want executive
officers deciding when states could send delegates to Congress.
525
One Senator made it
very clear:
It is a most important question, however to be ascertained and declared by
Congress, for the Executive ought not to be permitted to handle this great question
to his own liking. It does not belong, under the Constitution, to the President to
prescribe the rule, and it is a base abandonment of our own powers and our own
duties to cast this great principle upon the decision of the executive branch of the
government. It belongs to us.
526

Six weeks after Lincoln delivered the Amnesty Proclamation, Congress set out to
make policy on reconstruction. Representative James Ashley introduced a bill on
January 18, 1864 that pretty much followed through on Lincoln’s proposals. It contained

523
Representative M. Russell Thayer, 38
th
Congress, 1
st
Session. Congressional Globe, 2002.

524
Representative Nathaniel B. Smithers, 38
th
Congress, 1
st
Session. Congressional Globe, 1742.

525
Williams, 1975-1980.

526
Senator Ben Wade, 38
th
Congress, 1
st
Session. Congressional Globe, 3450.

271
a 10% provision, upheld the Emancipation Proclamation, incorporated a forward-looking
oath, and demanded new constitutions that banned slavery. Originally, Ashley’s bill
contained a black suffrage provision, however, he soon removed the section. Eventually,
both Democrats and Radicals altered the bill so substantially that it could no longer
command a majority of voters. In an odd display of coalitions, the far left and far right
helped defeat Ashley’s bill.
527
Significant, though, was the emergence of a rising Radical
coalition in Congress that seemed to want to do more than the president’s plan allowed.
Although they had not yet broken from the administration, they had become conscious of
their respective differences. One scholar claims, “It was in discussing the results and
tendencies of Presidential [Lincolnian] Reconstruction that the Congressional plan,
destined ultimately to prevail, slowly assumed definitive form.”
528

The tipping point came soon thereafter. Belz believes that Congress turned on
Lincoln after the president switched course on Lousiana’s reconstruction. Lincoln and
Congress had wanted states to write a state constitution before electing a government.
The federal officials in Louisiana reported that it would be better and easier to elect the
government first and then write a state constitution. Lincoln gave his approval for the
election-then-drafting idea. Things came to a head when Louisiana and Arkansas tried to
seat elected Congressmen. The Chairman of the Reconstruction Committee said that he
would not seat them ‘because the President has called on General Banks [the federal
governor of Louisiana] to organize another hermaphrodite government, half military, half

527
See Belz, 177-184; and Harris, 142.

528
McCarthy, 195.

272
republican.” The House then rejected the Louisiana representatives mainly because they
were members of the old slaveocracy. The Arkansas members’s credentials were
accepted. At this point, the select committee that had been working on implementing
Lincoln’s ideas turned to outlining their own reconstruction program.
529

Central to the turnabout in Congress was Radical Republican Henry Winter
Davis. He had tried to keep Arkansas from admitting members to the House floor. He
had said early on that Congress would hold Lincoln accountable for his proclamation.
530

Senator Ben Wade also played a key role, saying that while Lincoln might have had the
South’s best interests in mind, the idea that a minority could govern a state was absurd.
“Majorities must rule,” Wade declared, “and until majorities can be found loyal and
trustworthy for state government, they must be governed by a stronger hand.”
531

Wade-Davis
Congressman Davis and Senator Wade soon teamed up together to write and pass
the Wade-Davis bill, Congress’s first real foray into reconstruction. The bill imposed
harsher punishments and a more conditional reentry upon the South. Still, it was not the
Radical ideal. By the summer of 1864, Radicals started to call for black suffrage.
Although the franchise would become the centerpiece to Radical Reconstruction, it still
operated on the periphery during Lincoln’s final months. The main concerns for the
Radicals in 1864 were control of Southern governments by loyalists and confiscation of

529
Belz, 191-192, 196; and Waugh, 69-71.

530
Belz, 175.

531
Wade, 3450.

273
Southern property.
532
Nearly all Republicans could agree with the former. Only a
minority in Congress supported the latter. To be sure, most Republicans wanted the
South to come back into the Union smoothly; they did not see the need to revolutionize
Southern society. Radicals, on the other hand, were angry, wanting and expecting to
punish insurrectionists. What better way to reprimand rebels than by taking away their
land? The leading Radical, Thaddeus Stevens put it clearly, “It [Wade-Davis] seems to
me to take away the chance of the confiscation of property of the rebels…I leave the
House, and the country to decide whether this is an unjust war, worthy of vengeance.”
533

Stevens later tried to imprint his vision of reconstruction on Wade-Davis when he
articulated a preamble to the bill. In it, he referred to Southern states as “public enemies
waging an just war.” He said their actions were “so glaring” that they called for extreme
action to be taken against them. The preamble also called for a ban on Congressional
representation for the South.
534
The House of Representative’s 57-76 vote against
Stevens’s preamble demonstrates that although Radicals existed, they did not control the
regime. Perhaps more importantly, though, the passage of Wade-Davis shows that while
the 38
th
Congress was not a Radical Congress, it was still more stringent than the
president.
Other factors came into play with reconstruction in the summer of 1864. For
starters, the presidential (and Congressional) elections were only a few months away.
With no word on reconstruction in the Republican platform, “the Party would go to the

532
Foner, 60; and Waugh, 224.

533
Representative Thaddeus Stevens, 38
th
Congress, 1
st
Session. Congressional Globe, 2042.

534
Stevens, 2107.

274
electorate in November on Lincoln’s plan, not theirs.”
535
Voters in the North were
probably in no mood for leniency. Every single voter in 1864 either fought on the lines
or knew someone who did. The majority of those exposed to the violence of Southern
rebellion were unlikely to welcome them back without any conditions and/or
punishments. Wade himself acknowledged the political implications of passing a bill
with teeth, “The question will be asked of every man who goes out to canvass during the
coming election, ‘What do you propose to do with these seceded states in regard to their
coming back?’”
536

The bill’s other author had also had some personal issues with Lincoln in the past.
During Lincoln’s time as president-elect, he looked to place his party’s leaders in his
Cabinet. Having someone from Maryland in the Executive made sense for a couple
reasons. It displayed Lincoln’s willingness to work with someone from a slave state.
And if secession did come, holding Maryland in the Union was essential to keeping
Washington, D.C. under federal control. In 1860, two Marylanders fit the description for
possible nominees to the lucrative position of Postmaster General. Montgomery Blair
had been one of the founders of the Republican Party, and had campaigned for the
president-elect. On the eve of secession, Henry Winter Davis still associated with the
Know-Nothings, and had supported John Bell’s candidacy. Looking at their immediate
records, President-Elect Lincoln probably had no difficult in selecting Blair. He had
supported Lincoln, he was from a very powerful family, and he was a stalwart

535
Waugh, 224-225.

536
Wade, 3449-3450.

275
Republican. Unfortunately, Davis took offense. The decision to push the Wade-Davis
bill probably was—in part—a result of political retribution for the Congressman’s
rejection to the patronage-rich Postmaster General station.
Regardless of why Wade-Davis came to be, what it articulated was a more
exacting plan of reconstruction. Some of it meshed with Lincoln’s plan. For instance, it
called on the president to appoint—and the Senate to confirm—provisional governors.
Mostly, though, wartime Congressional reconstruction was stricter than Lincoln’s plan.
The method for electing delegates to a state constitutional convention was the same,
except that Lincoln called for a 10% baseline while Wade-Davis required a majority of a
state to take the oath. The oath itself was the ironclad oath, which required all who took
it to declare that they had never been supportive or done anything to support the
Confederacy. State constitutions had to meet three requirements before they could come
up for federal review: 1) no high-ranking civil or military officer (above colonel) of the
Confederacy could vote or hold office; 2) slavery had to be abolished; and 3) repudiation
of the Confederate war debt. If the constitution met these requirements, the president
could welcome a state back into the Union, only after Congress had approved the state
constitution. In its final section, Wade-Davis announced that rebel superior civil and
military officers were ineligible for citizenship.
From its introduction to its passage, the bill contained a couple important changes.
In one way, the radical nature of the bill had actually been scaled down through
alterations during Congressional debate. Originally designed to exclude all former
rebels, changes made it to only bar the highest ranks of Confederates. In another way,

276
the bill became, on the surface at least, more stringent. Originally, Davis had used
Lincoln’s 10% baseline. Congressman Smithers then recommended to “change the
provisions authorizing a state government to be reestablished by one tenth and require the
assent of a majority.”
537
Davis himself recommended the switch.
538
Both Democrats and
Republicans approved the change, showing that the switch might have been more of a
common sense maneuver rather than a radical win.
The Wade-Davis bill was not a Radical measure. It “was definitely anti-
administration.”
539
Yet, it did not follow through on a Stevens-like plan for
reconstruction. When John Rice moved to strike out the word “white” from voting
qualifications, it was none other than supposed radical Henry Winter Davis who
employed parliamentary maneuvers that did not allow a vote on Rice’s proposed
changes.
540
Wade-Davis did not give blacks the ballot. It did not confiscate property.
And parts of it stuck to Lincoln’s plan. Altogether, the bill was not radical. It did,
however, provide the nation with two political realities. First, it did show a rift between
the Executive and the Legislature. Secondly, it showed that regardless of what the
president thought about reconstruction, Congress believed the issue was its responsibility.

537
Quoted in Belz, 211.

538
Representative Henry Winter Davis, 38
th
Congress, 1
st
Session. Congressional Globe, 2107.

539
Belz, 232.

540
Representative John Rice, 38
th
Congress, 1
st
Session. Congressional Globe, 2107.

277
Table 57. Wade-Davis versus Lincoln’s plan.
Issue Wade-Davis Bill Lincoln’s Plan
Minimum # of loyalists 10% of state population 50% of state population
Type of oath Ironclad Forward-looking
Barred from taking the oath High-ranking rebels Among others, high-ranking
rebels
Confederate debt Repudiation No mention
Branch that would run
reconstruction
Congress President
Emancipation Proclamation Upheld Upheld
Primary Constitutional
justification
Republican form of
government
Republican form of
government; pardon power

Wade-Davis: Constitutional Basis
Much of the debate surrounding the Constitutionality of Wade-Davis came down
to how one saw rebellious Southern states. Lincoln did not believe that they had seceded.
He defended wartime measures like emancipation by saying that he was still president
over the entire country, and that his military commands could and should be carried out
throughout the North and South. Lincoln believed that regarding states as out of the
Union would set the precedent that states could in fact secede.
541
Because these states
were not out of the Union, Lincoln did not see any reason to lay out a severe plan for
bringing them back in. Instead, their status would remain as states while internally they
re-tooled, and externally, the House of Representatives and the Senate decided on
whether to seat delegates. Radicals, on the other hand, believed that Southern states had
seceded and that they should be treated as subjugated territories. Davis said, “Congress,
therefore, has supreme power over them as conquered enemies.”
542
Exerting dominance

541
Charles Flood, 1864: Lincoln at the Gates of History (Simon & Schuster, 2010): 182.

542
Davis, 81-85.

278
included forcing tough requirements on the South. Although Davis’s speech appeared
tough on the Confederacy, his bill was actually fairly moderate. It reasoned that disloyal
governments had been overthrown and in their place, loyal governments, with new state
constitutions, needed to be established. “On the Constitutional status of the rebel states,
the Davis bill thus occupied a middle position,” Belz writes, “recognizing the continued
existence of the states, yet taking into account their changed condition.”
543

Republicans used the “guarantee” clause as the primary Constitutional
justification for Congress getting in on reconstruction. Article IV, Section 4 reads: “The
United States shall guarantee to every state in this Union a republican form of
government.” Legislators combined this clause with the Supreme Court’s ruling in
Luther v. Borden to argue that they alone could determine what constituted a republican
state government. In 1841, a group of dissidents became dissatisfied with Rhode Island’s
voting restrictions, which limited the ballot to the most propertied. Without the consent
of the state government, they drafted a new state constitution and installed a new state
government. Violence ensued. Losing the fight on the battlefield, the dissidents took
their claim to court, where they claimed that the old government was not a republican
form of government. They asked the Court to declare it invalid. The Court held it had no
power to determine whether a state had a republican form of government. The whole
issue was a “political question,” and belonged to Congress.
544

543
Belz, 205.

544
Luther v. Borden, 48 U.S. 1 (1849).

279
A few Congressmen touched on the opinion. Davis said the Supreme Court had
given Congress plenary power over the issue. Ironically, Davis mentioned the decision
had come from “the mouth of Chief Justice Taney,” as if the mention of the Jacksonian
Justice gave the Republican claim more weight. Davis paraphrased Taney, “It is the
exclusive prerogative of Congress—of Congress, and not of the president—to determine
what is and what is not the established government of the state.”
545
Boutwell believed
that no other “department or tribunal” could investigate Congress’s decision. He insisted,
“They [rebel states] must come here with governments republican in form according to
our ideas.”
546
Daniel Gooch used Taney’s language: “The question is a political one, and
is to be decided by Congress, not by the Executive or the Judiciary.”
547
Nothing in the
Constitution prohibited or prevented Congress from enacting every section of Wade-
Davis. Congress could refuse a state “for any reason…[it] rests in the mind of
Congress.”
548

In addition, beyond deciding what was and was not a republican government,
those in Congress believed that they could take the necessary steps to ensure states
matched their definition. That is, Congress could force requirements on states so long as
it led to those states adhering to Congressional will. Suddenly, Wade-Davis supporters
had a Constitutional justification for forcing state constitutions to be written in such a
way. The tenor of the Republicans almost took on an ends justify the means” tone.

545
Davis, 81-85.

546
Boutwell, 2103-2105.

547
Representative Daniel Gooch, 38
th
Congress, 1
st
Session. Congressional Globe, 2071.

548
Boutwell, 2103-2105.

280
Congress could “determine the choice of the means necessary” to form republican
governments.
549
Davis put it most forcefully:
What conditions may it [Congress] insist upon, and what judgment may it
exercise in determining what it will do? The duty of guaranteeing carries with it
the right to pass all laws necessary and proper to guarantee. The duty of
guaranteeing means the duty to accomplish the result…It means that everything
inconsistent with the permanent continuance of the republican government shall
be weeded out.
550

Part of the means necessary included providing what one Congressman lightly
called “a temporary government.”
551
What he really meant was a military occupation of
the South while they worked towards establishing a majority population who could take
the ironclad oath. With the “ends justifies the means” rationalization, Republicans found
no reason to hide the fact that the military would be used to impose reconstruction on the
South. Gooch laid it out clearly, saying that states had to first come under military rule
before Congress would even consider allowing them to elect a delegation and write a
state constitution. Thomas Williams said, “Until the end of subjugation is achieved and
resistance entirely overcome…a military occupation is indispensable.”
552
If we take
Williams at his word—that the army should stay until resistance was “entirely
overcome”—then the naturally contrarian South had a long way to go before the Yankees
left Dixie.

549
Smithers, 1739-1743.

550
Davis, 81-85.

551
Representative Glenni W. Scofield, 38
th
Congress, 1
st
Session. Congressional Globe, 1970-1972.

552
Williams, 1975-1980.

281
Democrats took issue with this claim of military occupation. Baldwin agreed
with Republicans that the plan could “never be enforced except by the military arm.” He
disagreed in believing that the plan adhered to the Constitution. He was probably correct
in saying that it would “only tend to intensify hate and put further off the day of
peace.”
553
John Carlile said Congress had no authority to appoint a governor, unless they
were compelled to “resort to military power,” which could only happen if Southerners
stood in the way of civil authority.
554

George Pendleton called the doctrine “monstrous,” and said it created in Congress
“an absolute unqualified despotism.” Pendleton’s speech was a remarkable insight into
the Constitutional and political arguments against Republican reconstruction. Not only
did Wade-Davis go against the Constitution, it was also a “treasonable conspiracy”
against the government. The Republican claim of installing republican governments was
misguided; that clause was meant to stop states from setting up monarchies or
aristocracies. Additionally, Republicans “paltered,” refusing to take a side on whether or
not Southern states had actually left the Union. “The seceded states are either in the
Union or out of it,” he reasoned. If they had seceded, then reconstruction was void, for
the US could not force another country to be annexed. If they had not seceded, then their
original constitutions were still in effect. Pendleton then touched upon two inter-related
issues that had long been in American political discourse. Regarding states rights, he
said, “so long as the old state constitutions and forms of government are maintained, they

553
Baldwin, 1981.

554
Senator John S. Carlile, 38
th
Congress, 1
st
Session. Congressional Globe, 345 1.

282
must be held to be republican.” Regarding slavery, he argued that since slavery was
never considered anti-republican, Congress should just leave it alone where it existed.
555

Both sides jumped on the two issues. Democrats hit upon states rights from a few
angles. Many believed that the states were still intact, and therefore could not be
subjected to plans like Wade-Davis. They believed that the guarantee clause meant that
Congress could protect existing state governments. Surely they could not form new state
governments, Democrats believed.
556
Samuel Cox said it was foolish to consider the “old
states as forever destroyed.” Doing so would allow for “a usurpation of the sovereignty
of the people by the federal functionaries.”
557
Another Democrat said it ignored the
existence of state constitutions and state laws.
558
Nehemiah Perry commented, “This plan
to ‘reestablish’ state governments is based on the assumption that they have been
destroyed. This sir, I deny.” To him, the bill was “full of evil, oppression, and
inhumanity.”
559
States still had rights, Aaron Harding argued, and once the rebellion was
shut down, they should come back immediately with full rights.
560
J.C. Allen claimed the

555
Representative George H. Pendleton, 38
th
Congress, 1
st
Session. Congressional Globe, 2105-2107.

556
Belz, 208.

557
Cox, 2095-2096.

558
Allen, 1737-1739.

559
Perry, 2073.

560
Quoted in Belz, 208.

283
bill derogated the rights of the states.
561
A colleague called it “subversive of the state
governments.”
562

Another common complaint among Democrats was that they did not want
outsiders controlling the operations of the states. Allen was concerned that Congress
might pass a law that the people of the South found unacceptable.
563
Carlile figured, “No
state can have a republican form of government…[that] is prescribed to them by another
outside their limits. A republican form of government must emanate and emanate alone
from the people that are to be government.”
564
Altogether, “Congress has no…right to
dictate to the people of an existing state the provisions which their state constitution shall
contain.”
565
Republicans responded to these claims of states rights. Gooch said that the
states themselves had thrown the entire Union into chaos. It was “an entirely different
state of things from that which existed before the rebellion.” The South had brought it
upon herself, and now those states had to bear the punishment.
566
One can sense the
hostility in Smithers’s speech:
We are met by the dogma of state rights…It is time that there was an end to this
delusion…The miseries now afflicting the Republic have been produced by the
unceasing efforts of local partisans to persuade the people of the hostility of the
national government to their domestic institutions. It has culminated in rebellion
against its authority.

561
Allen, 1737-1739.

562
Representative Francis Kernan, 38
th
Congress, 1
st
Session. Congressional Globe, 2067-2069.

563
Allen, 1737-1739.

564
Carlile, 3451.

565
Kernan, 2067-2069.

566
Gooch, 2071.

284
Smithers speech certainly implied something about slavery. Likewise, Charles
Denison seemed to want to return to the antebellum days, “I am opposed to the bill…the
general government should [not] assume the right to control, by act of Congress, the
domestic institutions of sovereign states.”
567
Today, we take it for granted that the Civil
War ended slavery. In 1864, Republicans felt the need to forcefully articulate that this
would be a necessary conclusion of secession and insurrection. Congress had just failed
to pass the soon-to-be-passed Thirteenth Amendment. Congressional legislation banning
slavery (at least in rebel states) was the only anti-slavery measure that stood a chance of
passing before Congress adjourned and members went home to campaign for
reelection.
568
Davis would not leave the Emancipation Proclamation up for judicial
review; he thought that slavery was inconsistent with republican government and
therefore within the purview of Congressional control.
569
Another Republican would
never permit a “wayward” state back in unless “her organic law forever prohibited
involuntary servitude.”
570
As if to recall the Lincoln-Douglas debates, Glenni Scofield
said that reunion would never happen unless one sentiment became predominant;
“Hereafter,” he said, “let all concession be in favor of freedom.”
571
A colleague said the

567
Denison, 2039-2041.

568
Waugh, 224-225.

569
Davis, 81-85.

570
Beaman, 1243-1247.

571
Scofield, 1970-1972.

285
nation would not be safe with slavery intact.
572
Martin Russell Thayer articulated what
we today would regard as common sense:
Slavery in those states must be totally extirpated and forever prohibited by their
fundamental law…That slavery must, as a necessary consequence of the war,
forever disappear from the American Republic, I believe to be a conclusion long
since reached by a large majority of the loyal people of the United States.
573

Amazingly, Democrats disagreed with Thayer’s assertion. Allen thought
destroying slavery would also destroy the fundamental law of US government.
574
Cox
said that neither presidential nor Congressional emancipation could be reconciled with
states rights.
575
Carlile disputed Davis’s claim of free labor as an essential feature of
republican government, saying that the existence of slavery did not make a government
republican or anti-republican.
576
Frustrated by Republican ideology, James Craven
declared himself “sick and tired of this constant agitation of the negro subject…if slavery
is dead or dying, I shall not be a pall-bearer.”
577
Myer Strouse went so far as to “charge
that abolitionism is the cause of the war…The abolitionists were the original anti-Union
men.”
578

572
Donnelly, 2036-2039.

573
Thayer, 2002-2005.

574
Allen, 1737-1739.

575
Cox, 2096.

576
Carlile, 3451.

577
Cravens, 2045.

578
Strouse, 2044-2045.

286
Wade-Davis: The Last Days
The Wade-Davis bill passed the Senate in the last few days of the first session of
the 38
th
Congress. The final days are important in deciphering the political maneuvers
and policy implications of the bill. Even though the House of Representatives passed
their version of the bill on May 4, the Senate did not take up debate until late June. With
the session ending in early July, Senate Republicans had to pass the bill fast before
Congress adjourned. Their first obstacle was Senator John Carlile, who almost succeeded
in stalling the upper house so long that they could not vote on it. On June 30, Carlile
offered a resolution: “That the President of the Senate and Speaker of the House of
Representatives do adjourn their respective Houses sine die on Saturday next, the 2
nd
day
of July, 1864, at 12:00 m.”
579
In looking at the calendar in 1864, Carlile had effectively
moved to adjourn the very next day. Carlile offered his resolution on Thursday. It called
for the session to end, essentially, at the end of Friday. Carlile probably knew it would be
difficult to pass the bill in a day. In fact, if the Senate made any changes to the House
bill, he probably figured it would be impossible to smooth out those differences in less
than 24 hours.
Table 58. Carlile’s Plan.
Su M Tu W Th F Sa
26 27 28 29 30 1 2

Carlile’s resolution to end early did not pass. Still, it did not deter him from
continuing his mission to stall the bill. Although filibusters were not yet common, Carlile
embarked on his attempt to talk the bill to death. He covered every topic that had already

579
Carlile, 3407.

287
been thoroughly discussed. He discussed states rights, and the need for citizens to enact
their own constitutions and governments. He challenged Wade to show the
Constitutional authority to enact the bill. He gave his defense of the domestic institution
of slavery, then said it would take military power to enforce the bill. Finally, with not
much more to say, Carlile accused Republicans with passing the bill for political gain.
He charged, “Men often forget that they have a country to serve as well as a party to
obey…Partisan feeling sometimes drives from the bosom patriotism and love of
country.”
580

During his rantings, some Senators asked him questions. Before Wade realized
what was happening, he interrogated Carlile on the nature of the guarantee clause. Wade
asked whether Congress could break down a state government based on monarchy and
prescribe to that state the form of government it needed to set up. When Carlile would
not answer, his counterpart interjected, “I want an argument square. I do not like this
dodging.”
581
A few minutes later, Morton Wilkinson asked Carlile, “Suppose the people
of a state, four fifths of them, are opposed to a republican form of government, what then
would the Senator from Virginia do?” Carlile responded, “What right has this Congress
to make a government for the people of a state?” Wilkinson shot back, “I object to the
Senator’s answering one question by asking another?”
582
Daniel Clark asked a similar

580
Carlile, 3451.

581
Wade, 3452.

582
Senators John Carlile, Daniel Clark, and Morton R. Wilkinson, 38
th
Congress, 1
st
Session.
Congressional Globe, 3453.

288
question; Carlile again evaded it. “That does not quite meet the question,” Clark
informed his colleague.
It was obvious that Carlile was stalling the Senate when he yielded the floor for
other Senators to introduce new bills. Although yielding the floor is fairly common,
especially in the more informal Senate, doing so on the eve of one of the most important
bills in US history had to be considered suspicious. Carlile yielded the floor twice. First,
he yielded to Henry Wilson so that Wilson could offer a joint resolution dealing with the
pay of army musicians.
583
He later yielded to James Harlan so that Harlan could deliver a
conference committee report on a bill dealing with the railroad to the Pacific. Needless to
say, neither issue was of the utmost importance on July 1, 1864.
584
By the time Carlile
regained the floor, someone had told him that the Senate wanted to move on. As if to
play victim, he complained, “I have yielded it [the floor] so repeatedly since I attempted
to make some remarks on this bill, and it is now growing late, and sitting in this furnace
beneath this heat I would prefer concluding what I intended to say upon this bill
tomorrow or some other day.” Carlile did mention, however, that if the current
amendment up for the bill passed, he could “have nothing further to say on the bill.”
Understandably frustrated, Wade interrupted, “You had better finish your speech.”
585

The amendment before Carlile, and the rest of the Senate had been offered by B.
Gratz Brown. It dealt with striking out the enacting clause of the bill, which “practically

583
Senators John Carlile and Henry Wilson, 38
th
Congress, 1
st
Session. Congressional Globe, 3452.

584
Senators John Carlile and John Harlan, 38
th
Congress, 1
st
Session. Congressional Globe, 3458.

585
Carlile and Wade, 3459.

289
emasculated the Wade-Davis bill.”
586
Brown did not think “the attitude of the
country…is sufficiently distinct and sufficiently developed to justify us at this hour in
passing upon the work of reconstruction.”
587
Wade must have felt safe, thinking that the
Brown amendment would not pass. He had good reason to feel so, as he had just
survived an amendment to enfranchise blacks. He explained to the Senate that although
he agreed with black suffrage, he felt that “amendment, if adopted, will probably
jeopardize the bill.” He again acknowledged the proposition’s righteousness, but
lamented that there was not enough time to consider it. John Hale agreed, “I entertain the
same opinions…I shall waive my conscientious scruples and go for expediency.”
588
With
the amendment failing 5-24, Wade must have felt like he had a majority of the Senate in
his pocket. That is, he probably believed that he could tell a majority of Senators how to
vote on any amendment to the bill. He dutifully gave a defense against Brown’s
proposal, saying that the people of the country were looking for Congress to lead the way
in Reconstruction. It must have come as a shock to Wade when the Brown Amendment
passed 17-16, thereby effectively killing the bill.
Table 59. Black Suffrage.
Yeas Nays Total
Republicans 10 9 19
Democrats 0 6 6
UU/U 1 6 7
Total 11 21 32

586
Belz, 219.

587
Senator B. Gratz Brown, 38
th
Congress, 1
st
Session. Congressional Globe, 3449.

588
Wade, 3449.

290
Table 60. Brown Amendment.
Yeas Nays Total
Republicans 5 16 21
Democrats 6 0 6
UU/U 6 0 6
Total 17 16 33

Immediately after Brown’s amendment passed, Sumner obtained the floor and
offered his own amendment, which essentially legislated the Emancipation Proclamation
for all states. As a leading Radical, it was no surprise that Sumner would offer a
resolution to outlaw slavery, especially slavery in rebel states. But it was surprising in
the sense that Sumner must have known that it did not help his chances of getting Wade-
Davis passed if border state Congressmen had to vote on the Sumner amendment. If they
voted against it, they deviated from the party norm, and possibly risked looking anti-
Union. If they voted for it, they admitted to the fact that Congress could bar slavery in
the states by mere legislation, a fact that would likely cause constituents to turn on them
in the near future. Keeping in mind that Sumner certainly believed Wade-Davis was
better than Lincoln’s Plan, why would he put a poison pill into the bill? I believe that the
answer lies in the passage of the Brown amendment. If Congress passed Wade-Davis
with the Brown amendment, it essentially staked out its reconstruction policy as
toothless. Under these circumstances, Sumner probably thought it best to fight another
day. Killing the issue, and thereby dropping it until the next session, was better than
passing the Brown amendment.
A couple border state Senators commented on Sumner’s amendment. Saulsbury
from Delaware said, “The amendment comports very well with the whole character of
this bill. Never has there been a measure…so antagonistic to our whole federal system,

291
so unauthorized by the Constitution.”
589
Brown, who represented Missouri explained that
he personally supported Sumner’s motion, but “there are some things which are possible
and some which are not. Among those things which are not possible is the getting of this
bill with the amendment of the Senator from Massachusetts through the House of
Representatives.”
590
Sumner simply responded that he believed his proposition was
necessary. It failed, and the Senate passed the Wade-Davis bill (with the Brown
amendment).
The Brown-amended bill then went to the House, where they debated whether or
not to accept the Senate’s version of the bill. Davis did not want to agree to the upper
house’s edition, so he proposed a conference committee. Sensing the end of the session,
Stevens reasoned, “I think we had better concur. It is one thing to get, if we cannot get
anything else.” Davis responded, “It will be for the committee of conference to see
whether we cannot get better.” After some parliamentary moves by Davis, the House
voted 63-42 to ask for a conference.
591
Later in the day, on the Senate floor, the presiding
officer announced that the House had rejected the Senate’s bill and that Davis, Ashley,
and Dawson had been appointed to conference with members of the Senate.

Shortly
thereafter, Wade moved for the Senate to take up the House bill again. Thomas
Hendricks—a constant thorn in the Republicans’s side—moved to recess for about two
hours. Sensing another stalling technique, Wade objected, and the Senate remained in
session. After Wade recommended removing the Brown amendment, James McDougall,

589
Senator Willard Saulsbury, 38
th
Congress, 1
st
Session. Congressional Globe, 3460.

590
Brown, 3460.

591
Davis and Stevens, 3518.

292
another Democrat, moved to recess. James Lane, a Wade ally, objected. Finally, the
yeas and nays were ordered, the Senate eliminated the Brown amendment, and reported
to the House that that they had passed the House’s version.
592

Table 61. Rescinding the Brown Amendment.
Yeas Nays Total
Republicans 17 4 21
Democrats 0 6 6
UU/U 1 4 5
Total 18 14 32

Veto & Manifesto

With Congress set to adjourn in two days, they rushed the bill to the White House
to get the president’s approval. Lincoln did not sign it, instead letting it die as the
Congressional session expired. If presidential vetoes are rare, they were even more
uncommon in the 19
th
century, especially when the same party controlled both ends of the
Capitol. Even rarer, Lincoln used a pocket veto, which past presidents had employed less
than 20 times combined. Oddly, he issued a veto message, even though Congress had left
Washington. In it, Lincoln alleged that the bill had been presented to him with “less than
one hour” before Congress would adjourn. He claimed that the Legislature had not given
him enough time to consider the implications of the bill. He wanted to give his
reconstruction plan more time in Louisiana and Arkansas, and he did not want to be
inflexible in reconstruction and tied to a single plan. The message closed, “Nevertheless,
I am fully satisfied with the system for restoration contained in the bill, as one very

592
See 38
th
Congress, 1
st
Session. Congressional Globe, 3482, 3491.

293
proper plan for the loyal people of any state choosing to adopt it.”
593
So if a rebel state
chose to come back into the Union under Wade-Davis, under harsh restrictions and
conditions, the president would support that decision.
The veto message was not the highpoint of the Lincoln administration. To put it
simply, it did not make a lot of sense. Even if he had been given the bill with only an
hour to spare, he knew that Congress had been debating Wade-Davis for months. He had
to be ready for it to reach his desk. He also could have just asked Congress for more
time.
594
The “inflexibility” claim is also suspicious. If Lincoln wanted to keep the
federal government flexible to multiple plans, why did he stubbornly cling to his own
policy in Arkansas and Louisiana? The question is magnified when one realizes that the
president’s policy was largely failing in the two states. Finally, the closing lines of the
veto message, in which Lincoln announces his satisfaction with Wade-Davis and allows
Southern states to self-adopt it, is rife with problems. Namely, if he liked the bill, why
didn’t he sign it? But pragmatically, it opened the door for 2 different kinds of
reconstructive states: “Lincoln” states, where only 10% of the population had to swear
future loyalty; and “Congress” states, where 50% of the population had to swear past and
future loyalty. Taken as a whole, the veto message probably did not reveal Lincoln’s true
preferences. He probably thought his plan was better because it made it easier on the
South and would speed up reconstruction.

593
Abraham Lincoln, “Proclamation 115: Concerning a Bill ‘To Guarantee to Certain States, Whose
Governments Have Been Usurped or Overthrown, A Republican Form of Government,’ and Concerning
Reconstruction” The American Presidency Project (8 July 1864).

594
Paludan, 281

294
Additionally, Lincoln probably had to veto the bill in order to keep his
presidential coalition together.
595
Going into the 1864 presidential election, Lincoln
counted on War Democrats to support him. While he could court the opposition on war
measures, non-war issues (like reconstruction) divided the parties. By keeping the issue
off the table, he made the war, not reconstruction, the central issue of the presidential
election. And even though the more radical members of his party might have disagreed,
by the time Lincoln announced his pocket veto, the Legislature had adjourned,
Congressmen had gone home, and the forum for discussing political issues, the Capital,
had been closed until December, a month after the election.
The pocket veto came as a surprise. Henry Davis Winter had a particularly tough
time dealing with it. As the House adjourned for the summer and fall—as Congressmen
were, literally, exiting the building—Davis stood “at his desk, pale with wrath, wildly
waving his arms and denouncing the president into the emptying chamber.”
596
The soon-
to-be-released veto message did not help matters. Wade and Davis soon collaborated on
a response to the veto message. Dubbed the Wade-Davis Manifesto, it said Lincoln
“strides headlong toward the anarchy” of his Amnesty Proclamation. It chastised the
president for intruding in matters that Constitutionally belonged solely to Congress. “A
more studied outrage on the legislative authority of the people has never been
perpetrated,” it boomed.
597
One historian notes, “As a logical exercise, Lincoln’s

595
Donald, Lincoln, 510.

596
Waugh, 228.

597
“Wade-Davis Manifesto.” let.rug.nl.

295
explanation made legislators angry; as a practical guideline, it made them furious.”
598
No
wonder; “Congress passed a bill; the president refused to approve it, and then by
proclamation puts as much of it in force as he sees fit, and proposes to execute parts.”
Towards its close, it told the president to do his job—to execute the law—“and leave
political reorganization to Congress.”
599
For his part, Lincoln did not respond the Wade-
Davis Manifesto. Gideon Welles wrote that he had no desire to even read it. Lincoln
would “take no part in such a controversy as they seemed to wish to provoke.”
600

McCarthy maintains, “Congress had been defeated, and its discomfited leaders
sought to relieve their feelings by railing at the president.”
601
But I think there is more to
it than just an emotional outburst. The Wade-Davis Manifesto was a Republican-created
document that directly criticized the Republican president. For the first time, we had an
unmistakable political split between the two elected branches on the issue of
reconstruction. In December 1863, the Proclamation of Amnesty and Reconstruction had
met a fairly warm response from Republicans. Unfortunately for Lincoln, Radicals
pushed (albeit, gently pushed) for something stricter than the president’s plan. Coupled
with a failing reconstruction program in Louisiana, the majority in Congress suddenly
became open to installing its own reconstruction plan. Granted, these were not the
Radicals of 1867, pushing for a Constitutional amendment to enfranchise black men. But

598
Phillip S. Paludan, A Covenant with Death: The Constitution, Law, and Equality in the Civil War Era
(Urbana: University of Illinois Press, 1975): 281.

599
Wade-Davis Manifesto.

600
Quoted in Belz, 230 (footnote 46).

601
McCarthy, 284.

296
the obvious implication was clear—“that by July 1864, the president and Congress were
divided on the problem of reconstruction.”
602
And the final days of the 1
st
session of the
38
th
Congress demonstrated the growing divisions between Republicans in the
Legislature and Lincoln.
603
Congress’s vision for reconstruction ultimately became the
dominant ideology of the regime. But we should not let that get in the way of
recognizing that presidential reconstruction, while distinct from Congressional
reconstruction, was still a viable option in the mid-1860s.
Loyalty Oaths: The House of Representatives
One of the main issues of early—and even later—Reconstruction was the loyalty
oath. Lincoln had prescribed a forward-looking oath, in which Confederates had to
pledge allegiance in the future. Some in Congress agreed with the president, but Wade-
Davis called for the ironclad oath, whereby the subscriber had to swear that he did not
participate in the rebellion. Naturally, this limited those eligible to take it to a minority of
Southerners. Both houses of Congress dealt with the issue of loyalty oaths. The Senate’s
discussion was more extensive and direct, but the House of Representatives still
discussed loyalty and oaths in their debate on the Wade-Davis bill. Belz points out,
“[The] substitution for the simple prospective oath of the Amnesty Proclamation reflected
the view, shared by an increasing number of Republicans, that assuring security during
reconstruction demanded such a test of past conduct.”
604
The ironclad oath emerged as
the preferred method for counting loyal Southern citizens. Some Republicans might have

602
Belz, 237.

603
Paludan, 280.

604
Belz, 202.

297
thought the forward-looking oath was better, but all could agree that some kind of oath
was going to be a necessary component of reconstruction.
The House’s discussion on loyalty and oaths came in bits and pieces throughout
the lengthy debate on Wade-Davis. Overall, Republicans felt that they could not trust
Confederates. This was the first instance of what would become a long-lasting “can’t
trust rebels” defense. Many believed that Congress should forever disfranchise those
who revolted against the United States. Davis believed that rebels should not be
entrusted with government offices, and that it was unsafe to put faith in the “doubtful
loyalty of the rebel states.”
605
Scofield explained, “the ballot is the sovereign of this
country.” He did not understand why some thought Confederates could not be excluded
from the polls. If states could prohibit ordinary criminals, why could Congress not bar
traitors? He believed rebels would use “the high privilege of the ballot…[to] complete
the ruin of the country they were not quite able to destroy in the field.”
606

Some Representatives touched upon the actual oath. The Democratic Cox took
the unpopular opinion that, because the oath forced its takers to subscribe to the
Emancipation Proclamation, it also made them promise to support an unconstitutional act
of government. He thought it was “an oath of infidelity to the very genius of our
federative system.” He believed it would create anarchy.
607
Thayer took what was
probably considered a moderate approach. He thought that rebels shouldn’t be allowed to
vote until they had “cast off their political vices, and given bonds for our future security.”

605
Davis, 81-85.

606
Scofield, 1970-1972.

607
Cox, 2096.

298
He did propose to ban Confederate leaders; to not do so “would indeed be a folly
unequaled in the history of time, a crime against the living and the dead.” Nevertheless,
regarding ordinary insurgents, Thayer “would confidently surrender the privileges of the
elective franchise and the same rights of citizenship which we ourselves enjoy.”
608

Smithers was not as forgiving, arguing that the oath in the Wade-Davis bill was the only
one that could prove loyalty to the Constitution. Only those who could take the ironclad
oath, Smithers said, could constitute the people.
609

Loyalty Oaths: The Senate
At the beginning of the session, before Wade and Davis had even written their
bill, the Senate’s main concern had been on an internal resolution that would force all
Senators to take the ironclad oath as a requirement for holding office. Just like the House
debate, Belz writes, “The debate [on the Senatorial oath] was relevant to reconstruction,
for it revealed that many Republicans believed that an oath stronger than the prospective
one in Lincoln’s Amnesty Proclamation was needed for readmitting rebel states.”
610
On
December 17, 1863, Sumner submitted a resolution calling for all sitting Senators to take
the ironclad oath. The oath itself made its taker vow to “support and defend the
Constitution.” It also made them swear to have “never voluntarily borne arms against the
United States” and “given no aid, counsel, countenance, or encouragement to persons
engaged in armed hostility.”

608
Thayer, 2002-2005.

609
Smithers, 1739-1743.

610
Belz, 197.

299
It would seem likely that any man who made it to the Senate was likely a Unionist
who could take the ironclad oath. The outlier was James A. Bayard, Jr. of Delaware. His
fellow Delawarean, Willard Saulsbury had admitted that Bayard was “the only person in
this body who is at present to be affected by the adoption of the proposed rule.”
611

Whether or not Bayard would have been eligible to take the oath is somewhat of a
mystery. He did not advocate his home border state to secede. However, he did believe
that states that had left the Union had a right to do so, and should be left alone. Bayard
pointed out that “many men—some from partisan feeling, some from personal
distrust…suppose that it is want of patriotism in me.” Nevertheless, he steadfastly
maintained that “barring my views of the dangerous unconstitutionality of the law, I
could take that oath without a moment’s hesitation as readily as any member of this
body.”
612
If he really could is debatable, but unnecessary to ascertain for the discussion
here. The main point is that Bayard did not want to take the oath, and that reluctance
sparked a debate in the Senate on the issue.
Some Senators backed Bayard. Notably, almost all of those who spoke out
against the oath were Democrats. (Granted, all those who spoke out for it were
Republicans.) Johnson explained that while he had previously taken the oath, that action
in no way meant he consented to the process.
613
McDougall deemed it unconstitutional,

611
Saulsbury, page 48.

612
Senator James A. Bayard, Jr., 38
th
Congress, 1
st
Session. Congressional Globe, 52.

613
Senator Reverdy Johnson, 38
th
Congress, 1
st
Session. Congressional Globe, 49.

300
but provided that it could be offered as optional.
614
Solomon Foot, a Republican, saw “no
necessity for it.”
615
Hendricks provided a lengthy attack on the proposal. “Whoever
comes here, being duly elected and having the qualifications prescribed by the
Constitution, has a right to his seat,” he stated. Hendricks also pointed out that the
Senate’s oath made it so that the Amnesty Proclamation’s offer of a pardon would not
reach some. That is, Sumner’s resolution denied some from executive clemency.
Finally, Hendricks could not understand how someone could take an oath to support all
future Congressional legislation and presidential proclamations. He questioned how they
could be bound to acts which they cannot know.
616

Bayard himself provided the most convincing criticism of the resolution. He
found it repugnant to the Constitution in four ways. First, like Hendricks, he believed it
provided an extra-constitutional qualification for Senators. They had to be 30 years old,
legitimately chosen, and subscribe to an oath to uphold the Constitution. Beyond that,
the Constitution did not lay out further requirements for Senators. Bayard thought that to
impose more qualifications went beyond the law. Secondly, the nature of the oath
required by the Constitution related to the present and future. The ironclad oath “is an
expurgatory test oath retrospective…covering the events of the affiant’s past life.” Third,
it violated the Fifth Amendment. Bayard pointed out that a refusal to take the point was
not an admission of guilt; however, not taking the oath was seen as not supporting the
Constitution. Bayard believed this violated due process: “The legal presumption of

614
Senator James A. McDougall, 38
th
Congress, 1
st
Session. Congressional Globe, 54.

615
Senator Solomon Foot, 38
th
Congress, 1
st
Session. Congressional Globe, 296.

616
Senator Thomas A. Hendricks, 38
th
Congress, 1
st
Session. Congressional Globe, 278-279.

301
innocence is reversed.” He gave a hypothetical of a wartime rebel who reformed, join the
Union cause, and received a pardon. Were that man elected to the Senate, he could not
take the oath without perjuring. By “impair[ing] and abrogat[ing] the pardoning power of
the president,” the measure violated Article II of the Constitution. Lastly, Bayard
indicated that it was an ex post facto law, and therefore violated that clause of the
Constitution. Cutting his objectors off at the pass, he noted their emotional appeal: “It
has been asked, ‘would you admit a disloyal person, a traitor, into the Senate?’ The
answer is, there is no authority in a majority to refuse admission to his seat if the person
duly chosen is qualified.”
617

Saulsbury tried to move the bill to the Judicary Committee to look into its
Constitutionality, but Republicans had a viable counter.
618
Lyman Trumbull thought that
the Senate had already decided upon the oath’s validity by voting to make lower officers
in the government take the oath. It was objected to as unconstitutional then, but passed
by the Senate, clearly marking that a majority thought it was legal.
619
Sumner agreed,
“The Senate in passing the act has already given its opinion upon its Constitutionality.”
620

Not many Republicans rose to speak in favor of the oath. Jacob Collamer briefly
touched on it, “Those men, and men like them, must be kept out of this body.” To allow

617
Bayard, 31-37.

618
Saulsbury, 48.

619
Senator Lyman Trumbull, 38
th
Congress, 1
st
Session. Congressional Globe, 48.

620
Senator Charles Sumner, 38
th
Congress, 1
st
Session. Congressional Globe, 51.

302
them in would result in “an end of this government.”
621
Meanwhile, Jacob Howard
represented the party in a stinging rebuke of those who could not honestly take the oath.
He declared:
[I do] not hold them to be in a state of political equality…I have no particular
regard for the rights of persons who have committed treason against the
government and murdered its citizens…Any man who has once willingly borne
arm against the government of the United States or yielded aid and comfort to this
atrocious rebellion, any man who has deliberately and without coercion sought to
overthrow the government, to displace its authorities, and to institute another
government upon its ruins, is totally unworthy of a seat in either House of
Congress. He is not to be trusted.
622

All of the sins Howard pointed out, from “murdering its citizens” to “instituting other
governments” were backwards-looking. He clearly staked out a position that if a man
had ever gone against the US government, he could not serve, regardless of where he said
his future allegiances may lie. And though most Republicans sat out this debate, their
votes indicate a strong preference among Congressional Republicans for the ironclad
oath. Again, this was a key issue for Republicans in the Senate.
Table 62. Senatorial Oath.
Yeas Nays Total
Republicans 24 4 28
Democrats 0 4 4
UU/U 4 3 7
Total 28 11 39

Before Republicans passed the Senatorial oath, Bayard was given a chance to
deliver his speech on its supposed unconstitutionality. Slated to make his speech on

621
Senator Jacob Collamer, 38
th
Congress, 1
st
Session. Congressional Globe, 275-278.

622
Senator Jacob Howard, 38
th
Congress, 1
st
Session. Congressional Globe, 294-295.

303
December 21, 1863, he postponed it until after the Christmas recess.
623
When the Senate
reconvened, he was nowhere to be found. Sumner obtained the floor and proposed to
bring up the issue as soon as Bayard did appear in the chamber.
624
A couple weeks later,
Bayard showed and gave his speech. Soon afterwards, the Senate passed the resolution.
The next day, Bayard, along with William Richardson of Illinois, took the oath. Because
of the resolution, Bayard could no longer serve in, or address, the Senate. He took the
oath only to gain the floor immediately after he swore. Right before he resigned his seat,
he informed the Senate:
With a firm conviction that your decision inflicts a vital wound upon free
representative government, I cannot, by continuing to hold the seat I now occupy
under it, give my personal assent and sanction to its propriety. To do so, I must
forfeit my own self-respect and sacrifice my clear convictions of duty for the sake
merely of retaining a high trust and station with its emoluments. That I will never
do.
625

Johnson’s Accession
On April 15, 1865, Abraham Lincoln died and Andrew Johnson assumed the
presidency. Johnson’s previous political career had not been marked by anything
spectacular. He had served in both the House of Representatives and the Senate. He had
been both the peacetime and military governor of Tennessee. And his selection as the
1864 Vice President was merely to balance the ticket. His major pre-war
accomplishments included tax-supported public education in Tennessee and homestead

623
Bayard, 57.

624
Sumner, 118.

625
Bayard, 341.

304
legislation, which he pushed for in the Senate.
626
Throughout his political career, he had
done little to distinguish himself as a leading statesman. Still, even despite his
background as a Southern Democrat, Republicans in Congress seemed optimistic about
the future of Reconstruction under a Johnson administration.
Johnson had given previous cues to the country that he favored a tough mode of
Southern re-integration. One historian claims, “Johnson had been something of a Radical
during the war.”
627
In an 1864 speech, he questioned the propriety of letting Southerners
control their own state governments. If so, “then all this precious blood of our brave
soldiers and officers so freely poured will have been wantonly spilled.” He went on, “My
judgment is that he should be subjected to a severe ordeal before he is restored to
citizenship.”
628
Eventually, as military governor in Tennessee, he followed through on
these comments by bypassing elections, and self-appointing a convention.
629

Additionally, he called for the seizure of plantations, and their division among the
common loyal man. “The day for protecting the lands and negroes of these authors of the
rebellion is past. It is high time it was,” Johnson boomed.
630
Two specific speeches
would become legendary in the Johnson tale, not so much for their predictive insight, but
more so because his foes later used them to ridicule the president. As the military
governor in Tennessee Johnson addressed a crowd of blacks, “I will indeed be your

626
Foner, 176.

627
Martin E. Mantell, Johnson, Grant, and the Politics of Reconstruction (New York: Columbia University
Press, 1973): 14.

628
Quoted in McCarthy, 438-439.

629
Foner, 44.

630
Quoted in McCarthy, 438-439.

305
Moses, and lead you through the Red Sea of war and bondage to a fairer future of liberty
and peace.”
631
Secondly, Johnson made a reputation for himself by often quoting a
personal catchphrase: “Treason must be made odious and traitors punished.”
Based on his public stance, Republicans expected Johnson to be on their side on
issues involving reconstruction. Foner writes that they initially viewed his accession as a
godsend.
632
Radicals in particular saw Johnson, who was made of “sterner stuff” than
Lincoln, as “a more willing agent for their purposes.”
633
Their initial reaction to Johnson
was overwhelmingly positive, to the point of celebrating Lincoln’s death. Wade told the
new president, “Johnson, we have faith in you. By the gods, there will be no trouble now
in running the government.” Johnson replied, “I hold this…treason is a crime, and crime
must be punished.” Another Radical thought that God had left Lincoln in office “as long
as he was useful, and then substituted a better man to finish the work.”
634
George Julian
“regarded his [Lincoln’s] death as a providential means of saving the country.” Henry
Dawes wrote his wife that he had heard from his colleagues, more than once, that they
were glad with Johnson’s assumption of office.
635
Zachariah Chandler wrote his wife,
“Johnson is right. He now thinks just as we do and desires to carry out Radical measures

631
Quoted in Foner, 44.

632
Foner, 177-178.

633
Belz, 304; and McCarthy, 439.

634
Quoted in Foner, 177-178.

635
Quoted in Belz, 304.

306
and punish treason and traitors.”
636
Sumner thought Johnson would pave the way for
black suffrage.
637
Davis commented, “Johnson, if sober, will bring a very different spirit
into the dealings with the rebels.”
638

Even after taking the presidency, Johnson did nothing to discourage these
feelings. In fact, if anything, he gave Radicals even more hope that he would be the
“Moses” figure that delivered blacks while imposing judgment on the South. In a eulogy
for Lincoln, Johnson echoed the sentiments he had earlier relayed to Wade,
No one can say that if the perpetrator of this fiendish deed be arrested, he should
not undergo the extremest penalty of the law known for crime; none will say that
mercy should interpose. But is he alone guilty? Here, gentlemen, you perhaps
expect me to present some indication of my future policy…The American people
must be taught—if they do not already feel—that treason is a crime and must be
punished.

May 29 Proclamations
When Johnson took the presidential oath, Congress was out of session, and would
be for the next eight months. Johnson saw this period as an opportunity to lay out his
own reconstruction policy, without any kind of interference from an absent Legislature.
He believed that he could complete reconstruction before Congressmen came back to
Washington. Once they re-assembled, they would meet a united nation, and approve his
actions.
639
Like Lincoln, Johnson thought the Executive had a say in rebuilding the

636
Quoted in Albert E. Castel, The Presidency of Andrew Johnson (Lawrence, KS: Regents Press of
Kansas, 1979): 20.

637
Foner, 178.

638
Quoted in Belz, 304.

639
Patrick W. Riddleberger, 1866: The Critical Year Revisited (Carbondale, IL: Southern Illinois
University Press, 1979): 9-10.

307
nation. Like Lincoln, Johnson believed he could impose conditions on Southerners
returning to the Union. Lincoln, though, had entered the reconstruction debate partly
because he had no choice. Even some Congressmen had admitted that their lack of action
had prompted Lincoln to formulate the Amnesty Proclamation. But with Congress
having passed the Wade-Davis bill, and reconstruction at the top of everyone’s agenda,
Johnson did not have the same excuse as Lincoln for getting in on the issue. Instead,
Johnson entered the fray because he thought he could rally people to his views. Premier
Johnson biographer Eric McKitrick argues that Johnson was a populist who had never
had to play party politics. He had been a lifelong Democrat, but the people of Tennessee
had always elected him without reference to party. Thus, there was never any need to be
loyal to the Democracy. His addition to the Lincoln ticket in 1864 demonstrates his lack
of loyalty to the Democratic Party. Instead of insider politics, Johnson’s preferred
method was to go public. “It was perfectly in character for Johnson, at the drop of a hat,
to ‘go to the people,’” McKitrick writes.
640
Johnson’s presidency did not start off with
antagonistic overtones. He sincerely believed he could wrap up Reconstruction in a
matter of months, and that aggressive presidential action was the way to do it.
On May 29, 1865, Johnson issued a pair of presidential proclamations, that when
taken together, outlined what has become known as Presidential Reconstruction. Johnson
made emancipation a condition for restoration; by this point, only the most extreme
border state politicians disagreed. Largely resembling Lincoln’s Amnesty Proclamation,
Johnson offered to pardon Southerners, with restoration of property to those who would

640
McKitrick in Stampp, 48

308
take an oath. Like the Lincoln-proposed oath, Johnson’s was forward looking, calling on
its takers to “henceforth faithfully support, protect, and defend the Constitution.” Just
like Lincoln, Johnson listed certain classes of Confederates as ineligible for automatic
presidential pardons, but left the door open by allowing them to apply with a “special
application.” These groups included high-ranking civil and military leaders, those who
had left Congress to join the rebellion, and those who left the US Army to fight for the
South. Interestingly, Johnson also excluded anyone whose “estimated value of…taxable
property is over $20,000.”
641
Most of those who had such capital were likely to be
plantation owners, and plantation owners were likely to have dozens of slaves.
Additionally, anyone eligible for a pardon could take the oath and immediately
participate in the election of delegates to state constitutional conventions.
642
This
provision dramatically increased the number—and complexion—of citizens who could
participate in the founding of new state governments.
Table 63. Johnson’s Amnesty Plan
Those Excluded from Amnesty Example
Civil or diplomatic officers of the Confederacy Jeff Davis
Domestic or foreign agents of the Confederacy John Slidell
Judges who left the US to join the rebellion John Campbell
Army commanders above the rank of colonel & naval
commanders above the rank of lieutenant
Robert E. Lee
Congressmen who left the US to join the rebellion John Breckinridge
US soldiers who left the US to join the rebellion Robert E. Lee
Governors of Confederate states Francis Pickens
All who had more than $20,000 in taxable property Slaveocrats

641
Andrew Johnson, “Proclamation 134: Granting Amnesty to Participants in the Rebellion, with Certain
Exceptions” The American Presidency Project (29 May 1865).

642
Andrew Johnson, “Proclamation 135: Reorganizing a Constitutional Government in North Carolina”
The American Presidency Project (29 May 1865).

309
Why did Johnson choose this particular path to reconstruction? For starters, like
Lincoln, he sought a swift Southern re-integration. He believed that the Civil War had
been fought to preserve the Union, and he saw it as a moral imperative to sew it back
together as quickly as possible.
643
In order to do that, Southern states had to become fully
functioning members of the Union. Alternatively, some scholars believe that Johnson
modeled a particular plan that would most benefit the yeoman farmers of the South.
Johnson politically matured on the frontier during the Jacksonian era. His idol, in fact,
had been fellow Tennessean Andrew Jackson. Like Jackson, Johnson fashioned himself
as a supporter of the common man. He disliked elites, elitism, and wealth. He “still
romanticized the self-sufficient yeoman farmer” and believed “the Democratic Party, in
spite of its misguided Southern leaders, was the safest custodian of the nation’s
destiny.”
644
His plan to withhold pardons was an attempt to put wealthy farmers in their
place. He thought it would destroy the slaveocracy and transfer the balance of power to
small-scale yeoman.
Initially, Republicans responded fairly positively to Presidential Reconstruction.
One Johnson apologist writes, “The public reaction to the May 29 Proclamations
indicated that Johnson had done what was expected of him and done it well.”
645
Foner
says that the president enjoyed “overwhelming Northern support” following his

643
Castel, 28.

644
Kenneth Stampp in Andrew Johnson: A Profile, edited by Eric L. McKitrick, (New York: Hill and
Wang, 1969): 116.

645
Castel, 31.

310
announcement. A broad coalition embraced his plan and wanted to help implement it.
646

Sumner was disappointed that Johnson had not included black suffrage, but the Senator
would still back the president unless it became impossible not to.
647
Above all, in 1865,
Northerners wanted the South to display an attitude of contrition. Johnson had earlier
stated, “Before these repenting rebels can be trusted, let them bring forth the fruits of
repentance.”
648
A couple clauses in Johnson’s plan pointed towards forcing Southern
contrition. First, the oath itself was a humbling statement. And the exclusion of rebel
leaders, combined with the clause that allowed them to make a “special application” for
pardon, seemed to make the Southern aristocracy work hard to prove their repentance.
Johnson even said, “I did not expect to keep out all who were excluded from the
amnesty…but intended they should sue for pardon, and so realize the enormity of their
crime.”
649
The Republicans, as a party, considered contrition a national necessity.
650

“What the people in the North…wanted from the South was an acceptance of the results
of the war,” Castel writes.
651

Southern Response to Presidential Reconstruction
Unfortunately, the South was not sorry she had broken up the Union, only sorry
she had lost. A series of elections in 1865 in the South must have demoralized Johnson,

646
Foner, 216.

647
Castel, 27.

648
Quoted in McCarthy, 438-439.

649
Quoted in Eric Beale in McKitrick, 95.

650
Avery Odelle Craven, Reconstruction: The Ending of the Civil War (New York: Hold, Rinehart, and
Winston, 1969): 73.

651
Castel, 46.

311
for a majority of voters backed ex-Confederate candidates. Of the seven Southern
governors elected in the fall of 1865, only one (Louisianan James Madison Wells) could
honestly take the ironclad oath. Among those who had been elected: former Confederate
General Benjamin G. Humphreys (Mississippi); Confederate Senator James L. Orr (South
Carolina); and Confederate Treasurer Jonathan Worth.
652
Badly overestimating the
number of loyal Southerners and the voluntary cooperation of former rebels, Johnson had
not expected this kind of result. Bewildered by the results, he wrote, “There seems, in
many of the elections, something like defiance, which is all out of place at this time.”
653

Gideon Welles was more harsh, “The tone of sentiment and action of the people of the
South is injudicious and indiscreet in many respects…The entire South seem to be stupid
and vindictive.”
654

The reasons for the election of rebel leaders go back to policy Johnson laid out.
By enfranchising all who could take the forward-looking oath, the president made it
possible for those who had fought in gray to vote for their former commanders. In
addition, when compared with Radical Republicans, Southerners believed that Johnson
had come to their side, providing a much more lenient reconstruction policy than Sumner
or Stevens would enact. Because Presidential Reconstruction became the nation’s policy
(at least until Congress met), the South felt less concerned about pacifying uneasy
Northerners.

All of a sudden, Southerners began speaking more about states rights, and

652
Dan T. Carter, When the War Was Over: The Failure of Self-Reconstruction in the South, 1865-1867
(Baton Rouge: Louisiana State University Press, 1985): 94.

653
Quoted in Foner, 197.

654
Quoted in Stampp in McKitrick, 133.

312
how the federal government should be limited, rather than figuring out ways to appease
their Northern conquerors.
655
Loyalists in the South suddenly became susceptible to legal
harassment and even physical violence. Some were forced to leave.
656
Ultimately,
Welles thought the South had done more harm than good. He believed they had
“embarrassed those who are willing to befriend them,” and pursued “just the course
which their opponents, the Radicals, desire.” Foner believes that Southern intransigence
was key in slowly reshaping influential Moderates.
657
The Moderate James Grimes wrote
to Moderate William Fessenden, “What do you think of Andy’s reconstruction schemes?
It strikes me that matters are getting complicated, and that the rebels are having all their
own way.”

Sumner called it a “terrible failure,” and called upon Congress to treat the
elections as nullities.
658

As former Confederate leaders took their place as Candidate-Elects in 1865,
Johnson had a decision to make. He could throw out the results of the election, and
thereby cast doubt on Presidential Reconstruction. By refusing elected politicians to take
their seats, he would have had to install a more long-term military government. Although
Congress wanted to keep the military in the South, Johnson’s “reconstruction as quick as
possible” scheme demanded the army depart. Alternatively, he could grant pardons to
those who had been elected, provided that they applied with a “special application.” He
chose this route. There is no evidence that Johnson initially intended to grant wholesale

655
Carter, 31, 94.

656
Mantell, 14-15.

657
Quoted in Foner, 226; Stampp in McKitrick, 133.

658
Quoted in Craven, page 1, 126, 127.

313
pardons to ineligible rebels. He seemed to even recognize the temptation of doing so, “I
know it is easy…for anyone who is so disposed, to acquire a reputation for clemency and
mercy. But the public good imperatively requires a just discrimination in the exercise of
these qualities…To relieve one from the penalty of crime may be productive of national
disaster.”
659
Many believed that the “special application” clause would be used against
leaders of the rebellion who appeared penitent and willing to support the Republican
Party. The pardon would be granted in exchange for their political backing. Instead,
rebels of all sorts—delegates to state conventions, governors, legislators, Congressmen-
Elect, mayors, planters, pre-war politicians, military leaders—called on the president for
a pardon. Some merely had to write him.
660
Ironically, instead of the pardon being used
to legitimize the federal government, it was employed to legitimize Southern
governments.
Despite all the rhetoric about punishing traitors, Johnson embarked on a program
of amazing leniency. Only Henry Wirz, who had served at the prison camp in
Andersonville, was executed. Jeff Davis went to jail for a couple years, but was
eventually released, and never tried. Alex Stephens even returned to Congress. By 1866,
over 7000 Southerners who had been excluded by the $20,000 provision had been
pardoned.
661
Almost all of them received all of their land back. What had been initially
set aside for redistribution to former slaves was, under the repeated signature of the
president, restored back to its antebellum owners.

659
Quoted in McCarthy, 442.

660
Stampp in McKitrick, 127.

661
Foner, 161.

314
Why did Johnson grant the pardons? Of course, the surface-level answer shows
that he had made allowance for such clemency in the May 29
th
Proclamation. Moreover,
needing to legitimize Southern governors who had previously opposed the United States
government, Johnson lent his institutional authority. Another positive interpretation
might be that Johnson was a democrat. The Southern leaders that had been elected had
been chosen in fair manner. Johnson’s previous membership in the Democratic Party had
largely come as a result of following the Jacksonian principle of majoritarianism.
Perhaps he gave in to the will of the people. Additionally, maybe he felt that those with
more than $20,000 had come around on the ideal of the Union. Disillusioned—and
unrealistic—as that notion seems, I would not preclude Johnson from convincing himself
that Presidential Reconstruction had worked and that all that was now needed was a rash
of pardons. It was “quite likely…he believed that he was fostering the reconciliation of
the South to the Union by, in effect, forgiving Southerners who showed repentance for
the sin of treason.”
Some historians have provided other reasons for Johnson’s hasty compassion. It
is hard to debate that pardoning Southern leaders helped Johnson’s re-election chances in
the South. Castel believes the advancement of his presidential ambitions were the
primary motive behind granting so many pardons. Kenneth Stampp finds a less political,
and more narcissistic explanation. Stampp believes that Johnson became flattered by the
“recognition and respect” that Southern aristocrats suddenly exhibited. By no means had
Johnson ever been accepted into the Southern elite. In fact, he had always scorned them,
believing that they gave the South a bad name. Following his Proclamation, they were

315
now visiting him at the White House and begging him not only for the right to vote, but
also for the deeds to their homes. “For Johnson,” Stampp writes, “this was obviously an
intoxicating experience, and he became a little giddy as delegation after delegation of
contrite Southerners assured him that the fate of the South was in his hands.”

Some
theories posit that it was the wives of prominent Southerners that had the greatest effect
on the president.

Washington socialite Lucy Cobb might have even had the president so
smitten that she had a side business brokering pardons. In the end, Stampp believes that
the planter politicians had found Johnson’s weakness and exploited his vanity.
662

By pardoning so many rebel voters, in order to win an election in the South, one
had to appeal anti-reconstruction voters. Thus, a cause of the downfall of Presidential
Reconstruction also became one of its most notorious effects. Candidates continued the
cycle by appealing to the electorate’s rebel roots. Governors already in office also
rewarded their electors by giving them plum patronage positions. Instead of using
patronage to court a new breed of Southern Unionists, it was employed to re-install the
pre-war ideology of states rights, sectional resistance, and subjugation of blacks. Foner
believes that the “appointment policies sounded the death knell of wartime Unionists’s
hopes [for] Reconstruction.”
663

The president’s appeasement of the South did not stop at pardoning its rebel
leaders or wealthy aristocrats. He discharged all Confederate prisoners of war.
664
On

662
Stampp in McKitrick, 128-130; Castel, 49-50.

663
Foner, 188-189.

664
Andrew Johnson, “Executive Order: General Orders 109” The American Presidency Project 6 June
1865.

316
September 7, 1865, Johnson suspended the obligation of federal officers to turn over
collected taxes to the Freedmen’s Bureau.
665
A month later, he ordered the Bureau to
work out a deal with freedmen and landowners to return confiscated land. In reality, he
had ordered the Bureau to return confiscated land back to the planters.
666
He made the
curious decision to publicly pardon and release an infamous quartet of Confederates:
former US Supreme Court Justice John Campbell; Alex Stephens; George Trenholm (a
blockade runner and later Confederate Treasurer)
667
; and Charles Clark (a Confederate
general and governor).
668
Johnson rescinded a cotton tax, encouraged the revival of local
governments and courts, and permitted the organization of state militias.
669
Of what little
troops were stationed in the South in 1865, Johnson removed almost all black soldiers.
Seen as a “painful humiliation,” and feared to destroy plantation discipline, Johnson gave
into Southern pleas to take out the black troops.
The demobilization of the occupying army (black and white) probably proved
most frustrating for Congressional Republicans. Seven months after the end of the war,
the Union Army cut its roster by 85%. By the fall of 1866, only 38,000 (4% of the 1865
total) troops remained, and most of them had been stationed on the frontier to fight

665
Andrew Johnson, “Executive Order” The American Presidency Project 7 September 1865.

666
Andrew Johnson, “Executive Order: General Orders 145” The American Presidency Project 9 October
1865.

667
Interestingly, Trenholm might have served as Margaret Mitchell’s inspiration for Rhett Butler in Gone
With the Wind. See E. Lee Spence, Treasures of the Confederate Coast: The ‘Real Rhett Butler’ & Other
Revelations (Narwhal Press, 1995).

668
Andrew Johnson, “Executive Order” The American Presidency Project (11 October 1865).

669
Castel, 50-51.

317
Indians. Without a military presence in the South, rebel sympathizers controlled the
political, economic, and social structures. Although Johnson made a lot of questionable
decisions during his administration, this one is often overlooked. Republicans believed
that occupation of the South was central to accomplishing any of their reconstruction
goals. They had gingerly supported Lincoln’s Amnesty Proclamation and even
Presidential Reconstruction because they had assumed both would be accompanied by
occupation. Johnson’s decision to remove troops from the South was likely a turning
point in his ability to count on Congressional support. Foner notes that Radicals believed
that “without the army’s presence, the freedmen would be left at the mercy of their
former masters.”
670

Black Codes
Congressional Republicans also cringed at the Black Codes, another Southern
blunder that codified the region’s racism. Believing that Reconstruction had ended with
new state constitutions, loyalty oaths, and pardons, the Southern legislatures went about
business-as-usual. Unfortunately, that meant enacting hundreds of bills across the entire
South that combined prewar paternalism, economic subjugation, and outright
discrimination into a set of laws. Stampp writes, “The purpose of the Black Codes was to
keep the Negro…a propertyless rural laborer under strict controls, without political
rights, and with inferior legal rights…To put it bluntly, the Black Codes placed the Negro
in a kind of twilight zone between slavery and freedom.”

Another historian plainly says
that the Black Codes were just a continuation of traditional patterns. For example, in

670
Foner, 65, 148, 190.

318
Mississippi, apprentice laws made all black orphans bound to a white person who could
provide them with food, clothing, education, and medical care. The orphans could be
used as laborers, even subjected to corporal punishment by their caretakers. In South
Carolina, blacks were only permitted to work as farmers or servants, lest they be taxed.
Laborers had to sign yearlong contracts that stipulated they work from sunrise to sunset.
They were banned from leaving the plantation and could not leave their job to find work
under a better contract.

Louisiana law stipulated that courts could sentence blacks to long
prison terms, which could be served out by laboring on public works. Moreover, white
employers could pay their fines and bind them to work.
671
Some of it was not even
institutionalized, as planters themselves sometimes got together and collectively resolved
never to rent or sell to freedmen. The following is just a sample of some other Black
Codes. Southerners legitimately believed that they constituted a good-faith effort to deal
with post-emancipation biracial society. They thought the Codes were necessary because
of blacks’s inherent laziness. This defense angered Northerners, who believed white
Southerners “refined the practice of leisure to an art form.”
672

Table 64. Black Codes.
State Black Codes
Mississippi Must have written evidence of employment, forbidden to rent in urban
areas, could not buy farm land, could not preach without a license, could
testify in court only if they were a party
South
Carolina
“Vagrancy” laws prohibited blacks in certain areas
Florida Disobedience, impudence, and disrespect were crimes, blacks could be
whipped

671
Stampp in McKitrick, 136; Carter, 19; Craven, 120; Foner, 200, 205.

672
Carter, 149.

319
Table 64, Continued.
Texas All black family members had to work
Louisiana Disputes between laborers and employers settled by employers, could not
hunt or fish, could not own weapons or dogs, whipping
673

Why Did Johnson Allow It?
By December 1865, Johnson must have realized that Presidential Reconstruction
was not going according to plan. Secessionists occupied the highest offices in the South.
The Southern yeomanry had backed those candidates in the fall elections. The US Army
occupied very little of the South. Almost all traitors had been pardoned. Black Codes all
but returned blacks to the days of slavery. The question must be posed: why didn’t
Johnson demand more of the South?
Just as pardoning Southern leaders might have been an attempt to win Electoral
College votes, complicity with intransigence and pacification of Southern hostility was
likely an attempt to put together a political coalition. Castel says Johnson tried to craft a
party made up of Northern and Southern Moderates and Conservatives. It would exclude
Radicals, as well as extremists in the South, like unrepentant secessionists.
674
Foner
writes, “Were Presidential Reconstruction successful, Johnson would have created an
unassailable political coalition.” It would have reunited the Union, reelected the
Tennessean, and “determined the contours of American politics for a generation or
more.”
675
This is hard to argue. If Johnson could unify the American center in both
sections of the country, who would the opposition be? Radicals might pose a threat to

673
See Foner, Craven, and Stampp in McKitrick.

674
Castel, 29.

675
Foner, 184.

320
some Congressional seats in New England; and traditional Southern fire-eaters might win
some seats in the Deep South. But the proposed coalition would dominate in the North,
Northwest, West, and border states. Presidential races would be no contest. Johnsonians
would have super-majorities in Congress. Much of the historiography sees Johnson as an
over-ambitious opportunist. And perhaps he was over-ambitious, but his plan probably
seemed plausible up to the point where the South secured Radical ascendance.
Accepting the Black Codes, Johnson could have just been racist. One observer
thought he had “unconquerable prejudices” against blacks.
676
He had owned slaves, had
harbored a deep resentment towards antebellum abolitionists, and even made unofficial
assurances to Southerners that he would restrict black voting.
677
Johnson once met with a
group of prominent black men, led by Frederick Douglass, about black suffrage. After
the “darkey delegation” left, Johnson said, “Those damned sons of bitches though they
had me in a trap! I know that damned Douglass; he’s just like any nigger; and he would
sooner cut a white man’s throat than not.”
678
He once told Senator John Conness that
“white men alone must manage the South.”
679
In a seemingly common rant on race, he
once shouted, “This is a country for white men, and by God, as long as I am president it
shall be a government for white men.”
680
In the 1867 State of the Union Address,
Johnson maintained that blacks did not have the capacity for self-governance. “Left to

676
Brooks D. Simpson, The Reconstruction Presidents (Lawrence, KS: University Press of Kansas, 1998):
76.

677
LaWanda Cox and J.H. Cox, “Johnson and the Negro” in Stampp, 60.

678
Quoted in Cox and Cox in Stampp, 72.

679
Foner, 180.

680
Simpson, 76.

321
their own devices,” he said, “they have shown a constant tendency to relapse into
barbarism.” Foner calls the speech “the most blatantly racist pronouncement ever to
appear in an official state paper of an American President.”
681

By the time Presidential Reconstruction ended, Republicans in Congress must
have known that Andrew Johnson was closer in ideology to Andrew Jackson than
Abraham Lincoln. Now, like Lincoln, he believed that the states had not really seceded.
Lincoln’s view of secession, though, empowered the federal government, namely the
executive. Johnson’s angle, on the other hand, empowered the states. He once remarked,
“There’s no such thing as reconstruction. These states have not gone out of the
Union.”
682
Therefore, there was no need—nor any right—for the federal government to
regulate the internal affairs of any given state. This conception of home rule goes back to
the antebellum days. Montgomery Blair wasn’t too surprised by Johnson, saying, “The
president is really a Democrat of the Jackson school.”
683
Even after assuming the Vice
Presidency as a Republican, Johnson still referred to himself as a “Jacksonian
Democrat!”
684
He believed in strict construction of the Constitution, decentralization, a
limited federal government, and states rights. And like Jackson, in no way did this
conflict with his commitment to Union. Jackson could still be a states righter while
fighting nullification. Johnson was an ardent Unionist who still clung to pre-war notions
of the rights of states. Foner writes, “In reality, Johnson shared neither the Radicals’s

681
Foner, 180.

682
See Craven, 89; and McKitrick in Stampp, 56-57.

683
Quoted in Simpson, 85.

684
Castel, 21.

322
expansive conception of federal power nor their commitment to political equality for
blacks…Johnson had always believed in limited government.” Stampp reiterates,
“Johnson…still believed in political decentralization and states rights.”
685
From Mantel,
“It was essentially a return to the states-rights, strict-constructionist views that he had
held before the war.”

So if Johnson had always been a Jacksonian at heart, why did he
make (what must have seemed like) Radical statements? Mantell believes that rebellion
could never mix with Johnson’s devotion to the Union. As an anti-secession Southern
Democrat, Johnson had no base. He then made a temporary switch to the Republicans to
keep his long-standing political career intact. “After the war, however, with the
presidency at his command and the entire South looking to him for leadership…[he]
could revert to the political philosophy he found most congenial.”
686

For Johnson, the Jacksonian ideology added up to self rule in terms of
reconstruction. He put his “faith in democracy as practicable even in time of crisis.” He
believed the details of re-integration were best left to the people who would be most
affected by it. He considered “the idea of legislating for one-third of the popoulation of
the country, and passing Constitutional amendments without allowing them any voice in
the matter…full of danger.”
687
This attitude of self-reconstruction applied especially to
black voting. In a move that must have disappointed the at-first-hopeful Radicals,
Johnson believed that only the states themselves could determine who should and should
not vote.

685
Stampp in McKitrick, 116.

686
Mantell, 15.

687
Quoted in Beale in McKitrick, 92.

323
Remarks on Presidential Reconstruction
Johnson had made things worse. Six months after Johnson issued the May 29
th

Proclamations, the political scene looked more difficult to fix. He had let the South go
down the road of self-reconstruction; she had failed to put in a good-faith effort. The
North expected loyal leaders and minimal civil rights. They had gotten vestiges of the
Confederacy and unashamed racism. Dixie’s election of rebel politicians and legislation
of the Black Codes obviously pointed to the fact that the South had yet to reconcile the
supremacy of the federal government and emancipation. Meanwhile, Johnson said
nothing. Northerners also felt that it showed the South was not sorry for starting the Civil
War. Perhaps even worse, now that the South had had a taste of self-reconstruction, she
felt entitled to her old-time states rights. Following Appomattox, most Southerners
accepted the fact that Radical Republicans would dramatically alter their socio-political
culture. Johnson replaced that acceptance with traditional Southern obstinacy to anything
national.
Up until Presidential Reconstruction, the Radicals in Congress had been defined
by a measure of degree. That is, they were called “Radicals” because they believed in
stricter measures than the Moderates or Conservatives. In looking back, though, the
Radicals of 1864, and even 1865, seem fairly mild. What was termed a Radical in 1864
would have been a solid Moderate a couple years later. At the end of Presidential
Reconstruction, Johnson had probably lost the Radicals, who by now thought a new plan
was in order. But courting their support had never been his plan. He still had the
Moderates and Conservatives on his side; and that combination formed a majority in

324
Congress. Above all, Johnson wanted to re-unite the country quickly; to do that, he
needed to keep the army out of the South. Johnson despised military occupation, seeing
it as “contrary to the genius and spirit of our free institutions.”
688
Moderates and
Conservatives were willing to go along with this, as long as Johnson conceded some
other small points. As stunning a failure as Presidential Reconstruction proved to be,
what might be even more shocking is that it could still be saved and serve as a viable,
acceptable, even preferred method for rebuilding the South. But although Moderates
were still with Johnson, they were creeping towards Radicalism. Future events pushed
them over the edge.
Congress Meets
The 39
th
Congress kicked off with Johnson’s 1865 State of the Union Address,
followed by a groping search to find a reconstruction policy that a majority of
Republicans could agree on. Radicals took the first cut, but soon found out that they did
not yet have the numbers to implement their program. For a while, nothing happened in
Congress as Republicans struggled to find a program that could actually pass both
houses. In modern parlance, the regime had no grasp of who constituted the median
voter. Soon, though, they found their way, realizing that Congress could pass a Moderate
program that curried unenthusiastic Radical support.
As the legislative session kicked off, the same three wings of the Republican
Party had returned to Washington. Radicals believed they had the mandate due to the
utter failure of Presidential Reconstruction. When Southerners returned rebels to

688
Quoted in Beale in McKitrick, 92.

325
leadership positions and enacted the Black Codes, many sympathetic Northerners
suddenly converted to more revolutionary schemes. What had been a Moderate group of
voters became convinced that only the Radicals could induce the kinds of changes needed
in Dixie. In addition, in the summer of 1865, Radicals had embarked on a campaign to
push for black suffrage.

Still the primary selling point of Radical Republicans, black
suffrage climbed to new heights in terms of salience. By now, Radicalism became
synonymous with the enfranchisement of the black man. Radicals were also the strongest
advocates of military occupation. They believed that only the military could protect
black rights against untrustworthy Southerners. In addition, Radicals pushed for a
redistribution of land in the South. They still believed that former plantation property
should be divided up amongst former slaves. George Julian, a leading Radical
Representative said that without the confiscation of land, blacks would be reduced “to a
system of wage slavery…more galling than slavery itself.”
689

At base, Radicals believed that the federal government should play a dominant
role in regulating the business of the states. They believed that things like states rights
and limited government should not get in the way of what was really important—
wholesale reconstruction of the post-war South. While Radicals might have been
national expansionists, Republican Conservatives remained committed to Jacksonian
notions of federal authority. They believed that the states needed to play a leading role in
the rebuilding of their own societies. Constitutionally, they believed the nation had been
structured on this type of federalism. Pragmatically, they felt that Northern dictates and

689
Quoted in Foner, 68. See also 66, 221.

326
demands just wouldn’t play in the South. The ties between the Party and its
Conservatives started to become weaker in 1865. At the outset of the 39
th
Congress, they
were still Republicans, but were probably more committed to Andrew Johnson than to
any party platform. Furthermore, they had begun collaborating with Democrats, who
actually were much closer in ideology than their partisan colleagues, the Radicals.
Ideologically sandwiched between the Radicals and the Conservatives, the
Moderates probably placed the most men on the floors of Congress. Curiously, unlike
the minority Radicals, they did not insist on the legislative mandate, even though a
Moderate/Conservative coalition probably would have made sense. Perhaps they felt like
Presidential Reconstruction had indeed failed, and that a Radical surge would be proper.
Like Conservatives, they were less concerned with black rights than with restoring the
wayward South. Still, Moderates were committed to the physical safety of blacks and
minimal civil rights. Like the Radicals, they also believed a military presence was
probably necessary in the short term. Unlike the Radicals, Moderates were completely
opposed to confiscation of property; and black suffrage simply wasn’t that important to
Moderates. While Conservatives believed the president should play the lead role in
reconstruction (probably because he fit their preferences), Moderates (while still
matching presidential preferences fairly well) thought that Congress should influence
reconstruction policy. They had not given up on Presidential Reconstruction. They just
thought it needed a few modifications.
690

690
Riddleberger, 23-25.

327
The Radicals appeared to be the most organized of the bunch, and pushed to
caucus before the Congressional session began. During the recess, Stevens had written to
Sumner asking , “Is it possible to devise any plan to arrest the government in its ruinous
course? When will you be in Washington? Could we collect bold men enough to lay the
foundations to take the helm of government?”
691
They did find enough men, and the
Radicals did meet before Congress as a whole gathered. Although it would seem like
they were organized, later events would prove that no single reconstruction program had
come from the caucus.
It seems like the only substantive goal that the Radical caucus developed was to
bar the admission of Southern Congressmen from the House of Representatives. Had it
been up to the upper house, Southern Senators probably would have been banned too.
Keep in mind, though, that the method for choosing Senators was left up to the individual
states, and most state legislatures still elected Senators. But without state constitutions
and state governments, no method existed to select Southern Senators. Representatives
on the other hand, were elected directly by the people. And most of the people had opted
to elect former Confederate leaders. These ex-rebels showed up to Washington in
December 1865, expecting to be part of the 39
th
Congress. Instead, the House denied
them their seats. Speaker of the House Schulyer Colfax had instructed the Clerk of the
House to omit the names of Southern Congressmen during the roll call. Understandably,
some of the rejected became upset. Union loyalist Horace Maynard of Tennessee tried to
inquire as to why he could not take his seat, but because he was not a member of the

691
Quoted in Craven, 126.

328
House, he could not address the body. The Clerk of the House told the House that if they
wanted, he would give his reason for not calling the Southern officers. Stevens replied,
“It is not necessary. We know all.” Democrat James Brooks of New York tried to stop
what was happening, but Republicans maneuvered around him. Brooks did obtain
enough time to pose an interesting question, “If Tennessee is not in the Union…by what
right does the President of the United States usurp a place in the White House?”
692

Why had Republicans banned Southern Congressman? Obviously, they believed
that Southern states were not back into the Union yet, and therefore could not send
Representatives. Just as obvious, most Southern Representatives were probably
Democrats. Keeping them out of the House meant keeping the Republican majority as
large as possible. In the House, the Republicans held a 141-43 advantage. Their edge in
the Senate was 39-11. Given these figures, it appears like the Republicans had an
overwhelming majority. That majority would have shrunk to 141-101 and 39-33. With
more Conservative Republicans joining forces with Democrats, these Southern-included
majorities—especially the one in the Senate—would have fallen. Wade recognized that
admitting Southerners “surrenders our political rights into the hands and keeping of those
traitors we have just conquered…It is nothing less than political suicide.” Stevens was
nothing if not honest about his partisan intentions, saying that states should be denied
admission until they had amended the Constitution in ways “as to secure perpetual
ascendancy to the party of the Union. [Otherwise, the South and the Democrats] will at

692
Representative James Brooks, 39
th
Congress, 1
st
Session. Congressional Globe, 3-5.

329
the very first election take possession of the White House and of the Halls of
Congress…The Republican Party alone can save the Union.”
693

Lastly, Republicans denied Southerners their Congressional seats because it gave
them the opportunity to form the Joint Committee on Reconstruction. The brainchild of
the Radical caucus, the Committee became the driving force behind Congressional
initiatives on reconstruction. Soon after Southerners and Democrats objected to the
denial of Southern seats, Stevens proposed to form a committee to look into the matter
and examine the conditions under which such states would be allowed back in.
694
Its
jurisdiction quickly expanded though. Soon the committee held hearings, even bringing
in former Confederates, like Robert E. Lee, to testify. Alex Stephens’s unrepentant
secessionist testimony proved particularly helpful in the Radicals pushing their case for
stricter control of reconstruction. Additionally, the committee evolved to become the
place where party leaders discussed reconstruction policy.
Table 65. Joint Committee on Reconstruction.
Republicans Democrats
Senate Fessenden, Grimes, Harris, Howard, Williams Johnson
House Bingham, Blow, Boutwell, Conkling, Morrill,
Stevens, Washburne
Grider, Rogers

1865 State of the Union Address
Before the committee even had a chance to do much, Andrew Johnson delivered
his 1865 State of the Union Address, recapping what had already taken place, and
discussing the future of the South. Most of the speech touched on familiar themes. For

693
Craven, 132-133.

694
Foner, 239; Craven, 129.

330
example, there was a strong emphasis on states rights. “The maintenance of the Union
brings with it the support of the state governments in all their rights,” he pronounced. A
decade earlier, this kind of talk would have been taken for granted from a US president.
On the heels of the Civil War, it was somewhat shocking. Even more upsetting, Johnson
called on Southern states to “resume their places in the two branches of the National
Legislature.” The president did say that “it is not too much to ask” the South ratify the
Thirteenth Amendment. He followed it up, though, by saying it was up to “each state to
enlarge the body of its electors according to its own judgment.” That is, the Southern
states themselves should decide on black suffrage. More precisely, Johnson was
probably against it.
Perhaps most distressing to Radicals, and maybe Moderates, Johnson advocated
against deploying the US Army in the South because it “offered no security for the early
suppression of discontent.” He thought it divided the nation between the “vanquishers
and vanquished,” and “envenomed hatred rather than…affection.” As if to purposely
irritate the Radicals, Johnson proclaimed, “Besides, the policy of military rule over a
conquered territory would have implied that the states…[had] ceased to exist.” Johnson
also hoped that the judicial branch could resume its business as soon as possible, thereby
eliminating the need for military courts. He explained that, in regards to the military, it
was his call—as president, he was the “head of the Army.” Moreover, as president, he
could, and should, issue pardons.
Johnson recognized that his plan put a lot of faith in the Southern states. He
thought it was “a risk that must be taken.” He firmly believed that his plan would result

331
in a renewed allegiance to the United States. He likely thought the country was well on
its way. Stampp says Johnson used his 1865 State of the Union Address to “congratulate
himself on a job well done.” Different wings of the Republican Party would have
different takes on whether or not it was a job well done. Naturally, the Radicals claimed
he had grossly misinterpreted the conditions in the South. They insisted that those who
now had political power in Dixie were insurrectionists, and would never get over their
defeat. They looked to overthrow the US government, kick out Northerners, and re-
institute slavery.

Meanwhile, Republican newspapers commented on how well the
speech meshed with the majority of Republicans that made up Congress. Once scholar
notes that most Republicans found it “favorable.” Another writes, “On the whole, it was
well-received throughout the nation. Moderate Republicans and most Democrats
accepted it as a statesmanlike appeal for national unity and a fair statement of the steps
already taken.”
695

Congress then took center stage. Although the Radicals dominated the floor,
others did contribute. James Dixon presented some resolutions passed by the
Connecticut state legislature. They stated, “Andrew Johnson…by his great abilities, his
undoubted patriotism, and his eminent public services, has entitled himself to the
confidence of the nation…he ought to be sustained in the exercise of great freedom of
action…he ought to receive a frank and generous support from the people.”
696
Another
resolution read similarly, “laying aside all party feeling…we will cordially sustain and

695
Stampp in McKitrick, 124; Riddleberger, 32; Craven, 135.

696
Senator James Dixon, 39
th
Congress, 1
st
Session. Congressional Globe, 11-13.

332
support the president in every and all Constitutional efforts and policy of restoration.”
697

Anthony Thornton’s resolution announced that Congress and/or the president could not
Constitutionally enact black suffrage.
698
Thomas Noell tried to prevent Southern states
from seating Representatives just because those states did not allow blacks to vote.
699

Both Conservatives and Democrats tried to get the House to reconsider its ban on
Southern Representatives.
700

Mainly, though, the floor belonged to the Radicals, who simply could not find a
common plan. In the opening days, they had success on two policy issues, the proposed
amendment forbidding the payment of the rebel war debt and black suffrage in
Washington, D.C. When the House reported the Constitutional amendment on the war
debt out of committee, its spokesman stated, “This proposition is so generally concurred
in that I do not think it necessary to occupy the time of the House in discussing it.” He
was right; it passed 150-11.
701
The bill on voting in the Capitol contained a more heated
discussion. George Smith’s article on the measure contains an excellent recap of the
bill’s history, as well as the lines of argument drawn by each side. At the time, the bill
seemed horribly undemocratic. A recent referendum in Washington on black suffrage
had failed 6556-35. Still the half percent who had voted for it in the District of Columbia

697
Representative Charles A. Eldredge, 39
th
Congress, 1
st
Session. Congressional Globe, 20.

698
Representative Anthony Thornton, 39
th
Congress, 1
st
Session. Congressional Globe, 70.

699
Representative Thomas E. Noell, 39
th
Congress, 1
st
Session. Congressional Globe, 20.

700
See Representative Henry Raymond, 39
th
Congress, 1
st
Session. Congressional Globe, 30-34; Senator
James Guthrie, 39
th
Congress, 1
st
Session. Congressional Globe, 34-43; Representative Green C. Smith,
39
th
Congress, 1
st
Session. Congressional Globe, 68-75.

701
Representative James F. Wilson, 39
th
Congress, 1
st
Session. Congressional Globe, 84, 87.

333
was much larger than the single person who had voted for black voting rights in
Georgetown, where the proposition failed 712-1. Eventually, the House passed the bill
116-54. It never came to a vote in the Senate. Smith asserts, “Those who spoke utilized
seven basic arguments and counterarguments.” The table below lists those arguments.
702

Table 66. Black suffrage in Washington D.C.
Issue Argument against black
suffrage
Argument for black
suffrage
Whose government was it? White men All men
Hypocrisy Northern states did not have
black suffrage
Some did; it didn’t matter
for Washington
It was undemocratic Referenda unmistakably
pointed against it
It didn’t matter, Congress
governed Washington
Was voting a natural right? No Yes
Was this the first step
towards full black equality?
Yes Yes
Was it moral? No Yes
Black suffrage in the South This was the first step to
entrenching Republican
support in the South
Perhaps, but all loyalists,
black or white, should be
allowed to vote.

Beyond the rebel war debt and suffrage in D.C., the Radicals merely threw out a
bunch of ideas. It was almost embarrassing, if not unprofessional or even comical, as
Radicals could not get their collective act together. Wade demanded that the Senate deny
representation unless a particular state let blacks vote. Timothy Howe called for
provisional governments.
703
Boutwell called for black suffrage.
704
Sumner called for
confiscation and redistribution of land.
705
Stevens called for all three.
706
Hill insisted on

702
See George P. Smith, “Republican Reconstruction and Section Two of the Fourteenth Amendment” The
Western Political Quarterly Vol. 23, No. 4 (December 1970): 829-853.

703
Foner, 245.

704
Representative George Boutwell, 39
th
Congress, 1
st
Session. Congressional Globe, 44-49.

705
Senator Charles Sumner, 39
th
Congress, 1
st
Session. Congressional Globe, 16-18.

334
the ironclad oath.
707
Sumner wanted Southerners to take an oath to maintain a republican
form of government. He also had conditions for re-entry into the Union, including black
suffrage, counting blacks as citizens, and new state constitutional conventions.
708
Ashley
wanted to let loyal citizens re-make state constitutions.
709
Stillwell had his own
conditions for restoration.
710
Broomall introduced a resolution making “representation in
Congress upon the number of electors instead of the population.”
711
No less than six
different proposals dealt with civil rights.
712

The turning point might have come on December 19, 1865 when Moderate
Lyman Trumbull of Illinois said he would soon introduce a bill to “enlarge the powers of
the Freedmen’s Bureau.” He believed his bill would quiet “apprehensions in the minds
of many friends of freedom…[that] persons of the African race should continue to be
oppressed.”
713
That is, the bill had something to offer to the Radicals. At the time,
perhaps not too many Senators thought Trumbull’s speech would prove important.

706
Foner, 245.

707
Representative Ralph Hill, 39
th
Congress, 1
st
Session. Congressional Globe, 68-75.

708
Sumner, 2.

709
Representative James M. Ashley, 39
th
Congress, 1
st
Session. Congressional Globe, 68-75.

710
Representative Thomas N. Stillwell, 39
th
Congress, 1
st
Session. Congressional Globe, 68-75.

711
Representative John M. Broomall, 39
th
Congress, 1
st
Session. Congressional Globe, 8-11.

712
See Senator Solomon Foot, 39
th
Congress, 1
st
Session. Congressional Globe, 7-8; Representative
Thaddeus Stevens, 39
th
Congress, 1
st
Session. Congressional Globe, 8-11; Representative John Farnsworth,
39
th
Congress, 1
st
Session. Congressional Globe, 13-16; Wilson, 34-54; Representative Benjamin F. Loan,
39
th
Congress, 1
st
Session. Congressional Globe, 68-75; and Representative Thomas N. Stillwell, 39
th

Congress, 1
st
Session. Congressional Globe, 68-75.

713
Senator Lyman Trumbull, 39
th
Congress, 1
st
Session. Congressional Globe, 77.

335
Looking back, it was the moment in which the Moderates emerged with a coherent
agenda that could appeal to a majority of politicians in both houses. The House would
lag behind somewhat, still working out some of the more Radical measures, like black
enfranchisement in Washington, D.C. Soon, though, they would follow the Senate’s lead
and take up more Moderate measures. Three weeks after Trumbull announced his
intention, he introduced the Freedmen’s Bureau bill.
Freedmen’s Bureau Bill
With the Moderates seizing the agenda, they looked to pass something that could
appeal to all factions of the Republican Party. The Freedmen’s Bureau seemed to fit the
bill. It was not meant to displace Presidential Reconstruction, only tinker with it. The
main problems with Presidential Reconstruction had been the election of former rebels
and the Black Codes. The Freedmen’s Bureau bill sought to fix those issues by providing
some substantive and procedural protections for blacks, as well as installing a federal
presence in the South. So because it still worked with Presidential Reconstruction,
Moderates and Conservatives had something to gain by it. It would continue the
operations of the Bureau, which already served as a helping hand to blacks in the South.
It did call for the redistribution of some Southern land, but it was land that had already
been confiscated during the Civil War. By no means did the bill look to take away more
land from Southerners. Radicals probably would have wanted a more wholesale
confiscation and redistribution, but they had to be pleased that the anti-confiscation
Moderates would even allow for any redistribution. It called for civil rights legislation
and for military occupation, both tenets of Radicalism. But by this point, the Black

336
Codes had made it such that almost all Republicans believed some civil rights protection
was necessary. In terms of occupation, the bill stipulated that it would end once a state
seated delegates in Congress. With the Moderates in control of the Legislature, and with
their acceptance of Presidential Reconstruction, that probably meant sooner rather than
later. The one issue that Radicals probably found most agreeable was the establishment
of military courts charged with the duty of enforcing “the free enjoyment of such
immunities and rights.” No longer could the South discriminate on issues like buying &
selling property, giving evidence, or bearing arms.
714

Congressional Debate: Trumbull
Lyman Trumbull introduced the Freedmen’s Bureau bill, and spent more time
defending it than any other legislator. Again, the bill was not meant to contradict
Presidential Reconstruction, just ameliorate it. Accordingly, Trumbull even incorporated
passages from Johnson’s State of the Union Address.
715
The centerpiece of Trumbull’s
argument was that blacks needed the Bureau because it helped “protect the colored race
in their rights.” Trumbull argued that care for the freedmen had been “thrown upon the
hands of the government.” If the feds did not provide for them, no one would, and they
would perish. “It is only designed to aid these helpless, ignorant, and unprotected people
until they can provide for and take care of themselves,” Trumbull stated. There existed a
moral responsibility to “protect all people in their equal civil rights.” Plus, Congress was
charged with a legal responsibility to do something for blacks. The Senator insisted that

714
See “Laws of the United States,” 39
th
Congress, 1
st
Session, Congressional Globe, 366-367 (appendix).

715
Riddleberger, 72.

337
the Thirteenth Amendment did more than just abolish slavery. He explained, “The
Constitutional amendment abolishes just as absolutely all provisions of state or local law
which make a man a slave as it takes away the power of his former master to control
him…The government having that power has, in my judgment, the power, to adopt by
any means which it thinks best adapted to that end.” For Trumbull, the Thirteenth
Amendment sought to end de jure and de facto slavery, the latter marked by
discrimination and denied access to opportunity.
716

One way to thwart white domination of blacks was to provide blacks with their
own land, so that they could become independent. Trumbull said, “I believe that a
homestead is worth more to these people than almost anything else.” It eliminated the
employer/employee relationship between whites and blacks, and thus eliminated “a
dependent population.” Granted, this was a Moderate program, so it did not call for
permanent large-scale land confiscation. Rather, it required temporary small-scale
distribution. The government would not take more land from former Confederates.
Instead, using the land that the Bureau already owned (through wartime confiscation), it
would distribute a “title in fee simple to some portion of this land.” These were small
plots—20 acres to be exact. In addition, Trumbull did not see it as a long-term solution:
“We may protect them there for a reasonable time; and the opinion of the committee was
that three years would be a reasonable time.”
717
Compare the plan to one that Stevens

716
Trumbull, 319-323.

717
Trumbull, 299.

338
proposed, which sought to confiscate over 3 million acres from 70,000 Southern
planters.
718
Relatively, Trumbull’s bill seemed quite moderate.
The last major part of Trumbull’s program included defending the need for a
military presence in the Reconstruction South. It was ridiculous to believe that “the
rebels themselves shall be instantly clothed with all the authority they possessed before
the conflict.” He thought the Bureau should have a “military establishment not simply
during the conflict of arms, but until peace shall be firmly established.” Trumbull
recognized that Southern intransigence made rehabilitation of the South nearly
impossible. In order to make any changes in Dixie, the US Army had to be involved. He
stated the obvious, “It is necessary for this reason: in the rebellious states civil authority
is not yet fully restored. There would be no other way of punishing them, of holding
them to accountability, of governing and controlling them, in many portions of the
country; and it is because of the condition of the rebellious states.” Of course, upholding
civil rights would fall upon the judicial system, and military courts became the preferred
mode of trying those violated black civil rights. Trumbull believed that military courts
should be established in Confederate states.
719

Finally, Trumbull took some time to respond to some anti-Bureau concerns. Just
because some Senators claimed it unconstitutional did not make it so. He said the
exclusion of Southern representation could not stop the passage of the bill. Responding
to what would become a common complaint about expense, Trumbull declared, “It is a

718
Craven, 144.

719
Trumbull, 319-321.

339
matter of economy to do this. The cheapest way by which you can save this race from
starvation amid destruction is to educate them.”
720

Congressional Debate: Republicans
By far the most-used argument, Republicans maintained that the Freedmen’s
Bureau was essential to improving the lives of blacks. Many Congressmen simply did
not trust the South. Without the Bureau, one Maryland Senator expected blacks to be
driven out of the state.
721
Otherwise, they would be “exposed to persecution and
prosecution in every possible shape.”
722
Although Ignatius Donnelly said it would be
“impossible to estimate the evils that would follow” non-passage, he took a stab, saying
that blacks “would meet that indignation as they met in the old days of slavery.”
723

Leading Moderate John Sherman described the Legislature’s duty, “We are bound…to
protect the freedmen from the rebels of the Southern states; aye, sir, and to protect them
from the loyal men of the Southern states.”
724
Henry Wilson summed up what most
Republicans likely believed, “The man does not live with powers great enough to express
the positive good that the bureau has done, and none but Almighty God knows the evil it
has prevented.”
725

720
Trumbull, 322, 420.

721
Senator John A.J. Creswell, 39
th
Congress, 1
st
Session. Congressional Globe, 373.

722
Senator William Fessenden, 39
th
Congress, 1
st
Session. Congressional Globe, 365.

723
Representative Ignatius L. Donnelly, 39
th
Congress, 1
st
Session. Congressional Globe, 585.

724
Senator John Sherman, 39
th
Congress, 1
st
Session. Congressional Globe, 744.

725
Wilson, 339.

340
More specifically, Congress worried about the physical protection and civil rights
of freed Southern blacks. One Congressman pointed out that not a single Southern state
had yet granted the freedmen protection. “Until these states have done so…” Samuel
McKee reasoned, “the Freedmen’s Bureau is a necessity.”
726
Thomas Eliot warned,
“Withdraw the Bureau and the freedmen will have no friend to stand between them and
those who oppress them.”
727
Another Republican explained that the Bureau gave “full
and ample protection…to the negro in his civil liberty, and guarantee to him civil
rights.”
728
Even the ultra-conservative Henry Raymond admitted that Congress had a
duty to afford blacks the protections provided for in the bill.
729
Samuel Moulton
encapsulated Republican fears, “I say that one of the objects of the bill is to protect these
men in their civil rights against the damnable violence of the leading men in the Southern
states.”
730

A number of Congressmen saw the freedmen as helpless, and the Bureau as the
only means by which they could be cared for. Fessenden did not want to “throw them
upon the world without the slightest protection.
731
The Bureau offered programs
essential to creating some kind of racial equality in the country. Donnelly said the
Bureau provided the best chance to educate blacks. The Congressman added that if done

726
Representative Samuel McKee, 39
th
Congress, 1
st
Session. Congressional Globe, 653.

727
Representative Thomas D. Eliot, 39
th
Congress, 1
st
Session. Congressional Globe, 656.

728
Senator William M. Stewart, 39
th
Congress, 1
st
Session. Congressional Globe, 297.

729
Raymond, 655.

730
Representative Samuel W. Moulton, 39
th
Congress, 1
st
Session. Congressional Globe, 632.

731
Fessenden, 365.

341
well, it would lead to a day when the Bureau itself would no longer be necessary.
732

Josiah Grinnell could not see how anyone could object to “clothing the naked and
ministering in hospitals” to those who were sick.
733
John Hubbard added that the
government could not stand by and leave blacks “to perish by the wayside in poverty and
by starvation.” He rightfully pointed out, “It is not their crime nor their fault that they are
so miserable.”
734

A number of Republicans saw the Constitutionality of the bill via the Thirteenth
Amendment. Like Trumbull, they deduced that emancipation engendered other
protections for blacks, like equal rights and equal opportunity. Phelps said blacks had to
protected against the danger of being reduced, directly or circuitously back into
slavery.
735
Another Congressmen explained that subduing the rebel army was only part
of establishing freedom.
736
Fessenden explained that emancipation had become a
necessary wartime measure, and he did not understand how the United States could carry
on the Civil War, but “become utterly powerless to provide for any of its necessary and
inevitable results.”
737
Donnelly echoed, “[It is] a necessary measure growing inevitably
out of the rebellion.”
738

732
Donnelly, 585.

733
Representative Josiah B. Grinnell, 39
th
Congress, 1
st
Session. Congressional Globe, 652.

734
Representative John Hubbard, 39
th
Congress, 1
st
Session. Congressional Globe, 630.

735
Representative Charles E. Phelps, 39
th
Congress, 1
st
Session. Congressional Globe, 75 (appendix).

736
McKee, 654.

737
Fessenden, 365.

738
Donnelly, 585.

342
Some Radicals, while supporting and voting for the bill, argued that it did not go
far enough. Namely, they believed that black suffrage was the only cure for solving the
freedmen’s problems in the South. John Henderson said the bill was “a vain attempt to
protect men that you cannot protect except by the ballot.” He said the North and South
would be best off voting for black voting rights, and then voting against the Freedmen’s
Bureau. (Notably, Henderson himself voted for the Trumbull’s bill.) Armed with the
ballot, Southern politicians would have to canvass to blacks, and civil rights protections
& welfare programs would naturally flow. It was “the best protection in the world.”
739

Other Republicans disagreed, and the intra-party dispute was quite heated. Wilson
paraphrased Henderson’s account with a different slant, “Why, he says this Bureau is of
no account; give the negro the ballot, and that will stop him from starving; that will feed
him; that will educate him! You have got on your hands today 100,000 feeble, indigent,
infirm colored population that would starve and die if relief were not afforded.”
740
As if
to perfectly articulate the Moderate position, Stewart cried, “That is an assumption that is
hardly warranted…I am for the Union without negro suffrage, but I am not in favor of
turning the negro over to oppression in the South.”
741
Donnelly tried to take a middling
position, offering an amendment that highlighted the Bureau’s education policies, in
hopes that it would one day lead to a class of blacks educated enough to vote.
742

739
Senator John B. Henderson, 39
th
Congress, 1
st
Session. Congressional Globe, 745.

740
Wilson, 341.

741
Stewart, 298.

742
Donnelly, 588.

343
Congressional Debate: Democratic Opposition
Democrats took up a majority of the floor time during the debate on the
Freedmen’s Bureau bill. While Republicans (save Trumbull) focused their arguments on
broader issues (e.g., helping blacks, civil rights), Democrats criticized the details of the
plan (e.g., military rule, re-distribution of land). Republicans offered very little response
to these criticisms, probably knowing all along they had large majorities in both
chambers that would pass the bill. Still, it is worth briefly noting the Democratic
response in Congress because ultimately, it became associated with the president. Many
of the complaints involved size and scope of the federal government.
Democrats were mainly concerned with those sections of the bill that dealt with
the military’s involvement in executing the duties and responsibilities of the Freedmen’s
Bureau. They felt that the Executive’s ability to install the army in the South, and use it
as an arbiter in Bureau-related disputes, was a violation of separation of powers.
Hendricks claimed that civil government had been restored in the South, and demanded
to know why it took the military to enforce federal law.
743
Ritter rightfully claimed it
would take many troops to enforce the law—“Who can tell how many soldiers it will
take?”
744
Garrett Davis touched upon military occupation, saying that the Constitution
did not extend military jurisdiction over bureau agents. Davis, though, was even more
troubled by the imposition of Bureau-established courts—essentially, military courts. He
believed that it invested the Freedmen’s Bureau with judicial powers, and therefore

743
Hendricks, 315-316.

744
Representative Burwell C. Ritter, 39
th
Congress, 1
st
Session. Congressional Globe, 635.

344
constituted an “utter subversion of the courts.” Moreover, it violated individual liberties
by taking away a trial by jury. Davis said, “It is not competent, and it is dangerous and
wrong…that [Bureau agents] are invested with judicial powers and with the function to
pass in judgment upon the rights of citizens, [and that they] shall have the power to
invoke the military to uphold their unconstitutional and usurped authority.” In fact,
Davis offered an amendment that would have the Bureau “not assume any judicial
powers in any state where the courts are open and where the civil laws may be
enforced.”
745

Others backed Davis’s contention. Hendricks said the courts were open in the
South, and “exercising their jurisdiction within their particular localities without let or
hindrance.”
746
Trimble thought it violated one’s right to trial by jury, the right to appeal,
and the right to execute bail. The Freedmen’s Bureau would have “unlimited and
despotic power to fine and imprison,” he concluded.
747
At one point, Davis called it a
“monster, with its great sharp claws sticking out.”
748
Samuel Marshall proved even more
dramatic:
Instead of this being a bill for the protection of freedmen and refugees, it ought to
be called a bill for the purpose of destroying the Constitution of the United States
and subjecting the people thereof to military and domination. That would be a
much more appropriate title.
749

745
Senator Garrett Davis, 39
th
Congress, 1
st
Session. Congressional Globe, 347-348, 399-402, 417.

746
Hendricks, 315.

747
Representative Lawrence S. Trimble, 39
th
Congress, 1
st
Session. Congressional Globe, 648.

748
Davis, 347 .

749
Representative Samuel S. Marshall, 39
th
Congress, 1
st
Session. Congressional Globe, 629.

345
Davis claimed that he begged Trumbull to insert “a clause providing that that bill
should have no application in any state where the courts were open, and where the civil
law could be enforced by the courts.”
750
Apparently the Republican Senator did not
respond. Although the Republicans largely silenced their rebuttals, a few did respond to
claims of despotism, and the need for a military presence in the South. Eliot justified it
by claiming, “There is not one rebel state where these freedmen could live in safety if the
arm of the government is withheld…Withdraw the Bureau and the freedmen will have no
friend to stand between them and those who would oppress them.”
751
Phelps agreed,
“These freedmen ought to be protected by the government…especially from the danger
of being reduced by any process, direct or circuitous, to the condition of slavery from
which we have rescued them.”
752
Meanwhile Mouton made no effort to hide the fact that
he thought the Bureau was “completely and entirely a military establishment.” It was not
dependent on civil authority, and it operated under the assumption that the president, as
Commander-in-Chief, could execute the law in places where the government all but
assumed that the war still existed.
753

Overall, the Bureau had too much power, detractors believed. Willey even
admitted that the Bureau would need the powers listed by Congress in order to do its job;

750
Davis, 577. Davis actually mentions this during the debate on the Civil Rights bill.

751
Eliot, 517.

752
Phelps, 75 (appendix).

753
Moulton, 631.

346
alas, granting those powers to a bureaucracy like the Bureau was unconstitutional.
754

Cowan claimed the bill enabled the agency to assume police powers.
755
Hendricks could
not understand why the Bureau needed enlargement “because it seems now to do
whatever it pleases.”
756
Ritter declared the Bureau “already larger than anything of its
kind that the world ever knew.”
757
“Why these increased powers,” Nelson Taylor
stumbled, “I am at a loss to understand.”
758

A similar, and well-worn criticism, Democrats charged that the Freedmen’s
Bureau bill violated states rights. Johnson plainly stated, “I don’t think the states will
approve of it.”
759
Davis maintained that the bill “is intended to overthrow the liberties of
my state [Kentucky].”
760
Of course, some Congressmen saw no need to overtake the
states’s ability and responsibility to provide for its citizens. More directly, they thought
Southern state governments, by themselves, could properly deal with blacks. Guthrie
said they were already legislating for and taking care of the freedmen.
761
Kerr provided
an elaborate analogy, saying that the physician best positioned—and Constitutionally-
empowered—to prescribe a remedy to Southern race issues were the people of the

754
Senator Waitman T. Willey, 39
th
Congress, 1
st
Session. Congressional Globe, 396.

755
Senator Edgar Cowan, 39
th
Congress, 1
st
Session. Congressional Globe, 334.

756
Hendricks, 315.

757
Ritter, 634.

758
Representative Nelson Taylor, 39
th
Congress, 1
st
Session. Congressional Globe, 544.

759
Johnson, 373.

760
Davis, 402.

761
Guthrie, 335.

347
Southern states, respectively.
762
One Senator wanted “to be distinctly understood here
that I am in favor of state rights—the lawful, legitimate rights of states.” The proposed
bill obviously infringed on such rights.
763
John Dawson made the connection between
states rights, the war, the Democratic Party, and the Bureau: “I maintain, sir, and it has
ever been maintained by the Democratic Party, that the states-rights doctrines, properly
stated, present the true theory of the government.” The South might have taken it to an
extreme, as well as lost the Civil War, “but the doctrine of states rights is in now ay
affected by the result.” Dawson ended, “It remains the only true and stable foundation of
our republican system.”
764

Whether legitimate or just finding another excuse, many detractors complained
about the cost that the bill would engender, and questioned if it was a good use of
national funds. Taylor said he thought the government should help blacks somewhat, but
that the Bureau bill provided an “extravagant and loose way.” More “direct and
economical manners” could be found.
765
Some thought that spending on the freedmen
after such an expensive war would put the US on the “high-road to bankruptcy and
ruin.”
766
Others believed the states “can do it far cheaper than we can.”
767
George
Shanklin worried that money would be funneled primarily to “thousands of officers all

762
Representative Michael C. Kerr, 39
th
Congress, 1
st
Session. Congressional Globe, 621.

763
Cowan, 342.

764
Representative John L. Dawson, 39
th
Congress, 1
st
Session. Congressional Globe, 539.

765
Taylor, 544.

766
Dawson, 627.

767
Guthrie, 402.

348
with rich salaries.”
768
Saulsbury thought it unfair that white Americans would have to
support thousands of blacks Americans.
769
“It will produce a profligate, wasteful, and
unnecessary expenditure of the public money,” Davis charged.
770
Some Republicans rose
to challenge that claim. Fessenden said Congress had a right to spend the money, a duty
to help freedmen, and federal intervention was the only way to help.
771
Wilson denied
Democratic claims, “The little money that it costs, although it looks large, is but the
merest trifle in comparison with the great end to be attained.”
772

Some Democrats saw the writing on the wall, sensing that the Freedmen’s Bureau
bill might be part of a larger plan to modify Presidential Reconstruction. A trio of
Democrats took the opportunity to go on record that they believed Johnson’s restoration
plans were helping the country get back to normal. Guthrie put it simply, “I think the
government will be safe if we adopt the policies laid down by the president.”
773
No
Democrat would have disagreed with Dawson’s statement that “the Democracy stand by
the president in his effort to ‘complete the work of restoration,’ and congratulate the
country that there is a firm, strong hand upon the helm.”
774
McDougall pointed his attack
more on the bill. He explained that “no general law, no general system of administration,

768
Representative George S. Shanklin, 637.

769
Senator Willard Saulsbury, 39
th
Congress, 1
st
Session. Congressional Globe, 362.

770
Davis, 402.

771
Fessenden, 366.

772
Wilson, 341.

773
Guthrie, 336.

774
Dawson, 542.

349
no general popular judiciary” would be able to reconstruct the South. Obviously, he was
referring to the Freedmen’s Bureau. However, he did see hope in “a simple law, clothing
the executive with sufficient power…In my opinion, it will be wise to trust this power to
the president.”
775
Had Thad Stevens or Charles Sumner been president, McDougall
undoubtedly would have changed his tone. But with Southern Democrat Andrew
Johnson in the White House, surely he thought the president well-positioned to fix the
South.
One Senator’s defense of President Johnson deserves special consideration.
Referring to Guthrie’s criticisms of the bill and praises for the president, John Sherman
declared:
I can see nothing in it but an agency in the hands of the president, completely in
his power and under his control, to maintain the freedom of the negro of the
Southern states. The Senator says he has great confidence in the president. So
have I.
776

Sherman was a Moderate Republican; one of the group’s leaders, in fact. As one
of the most prominent Moderates, in 1866, he was willing to back Johnson, provided that
Johnson work with Congress to provide some obvious concessions to Southern blacks.
Sherman’s speech is significant in that it not only shows Moderates’s confidence in
Johnson, but also that they believed giving Johnson more power, via the Freedmen’s
Bureau bill, was a viable way to help blacks.
A couple Republicans joined the Democratic assault on the redistribution of land.
The Moderate Fessenden—a leading supporter of the bill—wanted to know what gave

775
Senator James A. McDougall, 39
th
Congress, 1
st
Session. Congressional Globe, 397-398.

776
Sherman, 744.

350
Congress the right to sell land to blacks.
777
Fellow Republican Waitman Willey said the
government “has no power to make itself a landlord and to receive black men as tenants
under it.”
778
Some thought that the wartime measures of land confiscation and
distribution had ceased when the war ended.
779
Thomas Kerr called it “so radical a
power” and “reckless fanaticism.”
780
A number of Democrats worried about the section
that allowed Congress to buy more land to distribute to blacks.
781
Others simply
believed, “There exists no power in this government to deprive a citizen of the United
States of his property, to take a way the hard earnings of his own industry and bestow
them upon this class of citizens.”
782
Republican Samuel Moulton disagreed, explaining,
“It is a power that has exercised by this government from its very foundation—the
providing of homesteads for the indigent and the poor of our country.”
783
Thad Stevens
stated that to give the land back to the rebels would be an outrage.
784

Of course, no bill of this era would be complete without charges of partisanship.
Ritter believed the entire bill was a conspiracy to drive white people out of the South,

777
Fessenden, 323.

778
Willey, 397.

779
Davis, 395; and CG; McDougall, 375.

780
Kerr, 623.

781
Johnson, 372; Marshall, 628; and Hendricks, 318.

782
Trimble, page 647; see also, CG, Ritter, 635; and CG, Kerr, 625.

783
Moulton, 633.

784
Stevens, 655.

351
thereby securing more Republican seats in Congress.
785
Likewise, Shanklin thought the
Bureau would teach blacks to hate Southern whites and to vote for the Republican Party.
“These are important matters to operate for party purposes,” he said.
786
Taylor echoed
the accusation of “party purposes.”
787
Davis called it “the bold, reckless, and
unconstitutional system of measures devised by the radical party to enable it to hold on to
power and office.” He ranted about the claims of needing the Bureau:
What necessity? The necessity of the nation? The necessity of preserving the
Constitution? The necessity of maintaining popular liberty? Oh no; the necessity
is that the fortunes of the Republican Party are imperiled; that it is in danger of
losing officers and place; the whole power of the government and its patronage is
about to slip from their hands.
788

Republicans did not just sit back and take the abuse. One Senator said that the
war would have never happened without the Democratic Party’s support of the South.
789

Samuel McKee said that the only ones making objections to the bill were the same men
who had supported the Confederacy.
790

Many Democrats opposed the bill because of concerns involving specific
legislation protecting only blacks. That is, they felt the legislation did not provide equal
protection, or grant privileges and immunities to all citizens. Reverdy Johnson, who
actually ended up voting for the bill, put it mildly, saying that the legislation to help

785
Ritter, 635.

786
Shanklin, 637.

787
Taylor, 544.

788
Davis, 371, 402.

789
Fessenden, 364.

790
McKee, 653.

352
blacks could not come because they were black, it must be because they were citizens,
which made the legislation equally applicable to whites.
791
Conservative Republican
Edgar Cowan said that Congress would have no right to make laws that benefited only
New Yorkers or Pennsylvanians.
792
One Democrat said Congress could not make a
government within a government for blacks.
793
Others made the seemingly innocent
observation that the bill “discriminates and favors one class at the expense of another.”
794

Others proved sharper in their attacks. Davis said it oppressed whites, leading to the
“degradation of the white race and the enrichment of the negro race.”
795
James Guthrie
charged, “While you cry justice to the African, you are not slow to commit wrong and
outrage on the white race.”
796

Some of the Democrats’s complaints can only be attributed to blatant racism. A
number of Congressmen spoke of the supposed laziness of blacks.
797
Others spoke of
white supremacy.
798
Though many of the lines delivered were shocking even for the
Reconstruction era, McDougall’s might have been the worst: “As a race, you can give me
no illustration, from Fred. Douglass all the way through the category, of a single

791
Johnson, 372.

792
Cowan, 341.

793
Ritter, 39-1, 634.

794
Taylor, 544; see also, Willey, 397.

795
Davis, 402.

796
Guthrie, 744.

797
Davis, 396; Saulsbury, 362; and Shanklin, 638.

798
McDougall, 401; Hendricks, 318; and Dawson, 541.

353
individual of them who is or was a grave, careful, considerate, and high reasoning
man.”
799

Veto of Freedmen’s Bureau Bill
Radicals, Moderates, and Conservatives all thought Johnson would sign the
Freedmen’s Bureau bill. It had come as quite a Moderate measure, working in
conjunction with Presidential Reconstruction, and garnering the votes of a nearly
unanimous Republican Party. Moderate Senators Fessenden, Trumbull, and Grimes had
all had separate private meetings with the president, and had walked away convinced he
would sign the Bureau bill. It came as an “utter surprise” to Congress when he vetoed the
legislation.
800
There are various reasons as to why he would not sign the bill. All of
them hold some sway.
In reading his veto message, Johnson seemed to have Constitutional qualms about
the bill. Many of the criticisms repeated the ones that had come up during the
Congressional debate. Johnson did not approve of the expansion of the military, as well
as the institutionalization of military courts in the South. He felt particularly distressed
about the idea of a military judge—a “stranger”—capable of “acts of caprice, injustice,
and passion.” Johnson did not believe in the redistribution of land. He believed that
blacks had to make their own way in both Southern society and the Southern economy.
Particularly, he believed that the states had already been restored, and that there was no
reason to continue and/or expand the Freedmen’s Bureau. He certainly believed that the

799
McDougall, 401.

800
Foner, 247.

354
bill ran counter to Presidential Reconstruction, which was troubling for two reasons.
Obviously, he seemed to feel that it got in the way of his policy preferences. But also,
Johnson thought that reconstruction was a presidential issue, and one that Congress had
no right intruding on.
801
He closed his veto message with an odd passage, noting that the
president was the only official who represented all states. Because 11 states were not
currently represented in Congress, Johnson thought it his duty to protect them from
unwanted legislation.
802

Andrew Johnson simply hated the Freedmen’s Bureau. Despite the claims that he
would make the South pay and that he would be a “Moses” figure for blacks, in reality,
Johnson had an acute distaste for the institution most likely to accomplish those goals.
He had already issued a presidential proclamation that had led to the Bureau returning
Southern lands.
803
This executive order had two effects. First, it stole the main source of
income for the Bureau. Selling confiscated land was the primary way of paying for the
institution’s services. Moreover, it had a tremendous demoralizing effect. Some blacks
were even kicked off lands that they had been farming throughout the Civil War. It did
not help that those lands were given back to the old slaveocracy. One historian calls this
part of Presidential Reconstruction “property restoration.” In addition, Johnson had
started firing any Bureau official who opposed him. Although the veto still came as a
surprise, in looking back, the president had provided some cues as to such a course of
action.

801
Craven, 146.

802
Andrew Johnson, “Veto Message” The American Presidency Project (19 February 1866).

803
Johnson, “Proclamation 134.”

355
Riddleberger believes Johnson suffered from two problems.

First, the president
could not tell the difference between Radicals and Moderates. He believed that any
constructive criticism of any part of Presidential Reconstruction was a full-on attack of
the entire program. He would not stand for such assaults. Secondly, Riddleberger says
that Johnson believed the Radicals had concocted a conspiracy against him.
Unfortunately, Johnson leaned heavily on Gideon Welles, who happened to be close
friends with Charles Sumner. Sumner would dump his frustrations on Welles, who then
reported the denunciations back to Johnson. For example, in the months leading up to the
veto, Welles noted that Sumner had “denounced the policy of the president…as the
greatest and most criminal error ever committed by any government.” Sumner also had
told Welles that Congress was “becoming more firm and united every day.”
804
It is
understandable to see why Johnson would not trust someone like Sumner with his
policies. Unfortunately, the president’s inability to distinguish Radicals like Sumner
from Moderate proposals like the Freedmen’s Bureau bill exacerbated the problem.
Instead of thinking of Congress as uniting around Presidential Reconstruction—which,
essentially, it was—Johnson thought they were planning his demise.
Lastly, Johnson may have vetoed the bill partly for political reasons. As Foner
points out, “The idea of political realignment…still hung in the air.” He had probably
lost the Radicals by this point, but still maintained Moderates & Conservatives,
Democrats & Republicans, and Northerners & Southerners. This was the party Johnson
set out to build; “but the Freedmen’s Bureau bill forced him to begin choosing among his

804
Quoted in Riddleberger, 75. See 64-75.

356
diverse allies.”
805
If Johnson signed the bill, he would likely lose Southern Democrats,
and perhaps some Conservatives. If he did not, he would lose Moderates. In addition, by
the time the bill came to the White House, “Johnson himself had concluded that a
showdown with the Radicals was necessary to the success of his policy and ambitions.”
Unfortunately, the unpopular Washington, D.C. suffrage bill had died in the Senate.
With no other Reconstruction issues on the horizon, he bit at the first one that came
across his desk. He vetoed the bill because “given his political situation and ambition, he
saw no practical alternative.”
806

Congressional Response to the Veto
Congress became upset with the president. Foner believes that this was the
moment where Congress split with the president, where a “bitter political struggle” was
inevitable. He writes, “Many Republicans considered the veto a declaration of war
against the Party and the freedmen.”
807
Of course, Southerners applauded the move.
Five Southern state legislatures—still controlled by ex-Confederates—passed resolutions
praising Johnson for his “courageous defense of Constitutional principles.”
808
On the
floor of Congress, Senator Davis gave the pro-veto argument while Senator Trumbull
delivered the anti-veto argument. Davis did no more than re-hash familiar arguments.
The table below describes Davis’s take on common Democratic positions on the issue.

805
Foner, 248.

806
Castel, 63.

807
Foner, 248, 249.

808
Quoted in Carter, 234.

357
Table 67. Garrett Davis.
Issue Quote
Military
Presence
“It establishes a military despotism in every state…and sustains it by the
whole military power of the United States.”
Military
Judges
“It forces all causes of suit between the negro and white persons from
the civil law and civil judge and juries, and requires them to be tried by
the officers of this bureau, according to its military code.”
Bureau had
too much
power
“The frantic friends of the negro claim that Congress has the authority
and is bound to pass laws to secure to all the negroes in the United
States farms of 40 acres of good land, build houses upon them; to found
churches and schools, and furnish them with preachers and teachers; to
build and maintain the requisite number of poor-houses for that whole
population, to supply the indigent and destitute with provisions,
clothing, and medical service, and all the transportation; to secure the
negro an equality of civil rights and disabilities, and of pains, penalties,
and punishments; to guarantee to him suffrage in elections, and to give
evidence in courts; and as a necessary sequel, eligibility to all the offices
by which the laws are made, adjudged, and executed, state and federal
courts, inferior and supreme, shrievalties and marshalcies,
governorships, and presidency.”
States Rights “Requires them by force of arms to trample down all state laws which
deny to negroes and mulattoes an equality of the civil rights.”
Cost “Its enormous and profligate expenditure of the public money”
Support of
Johnson
“Never was there an occasion or a measure which so imperatively
demanded the presidential veto.”
Partisanship “It has been devised by the leaders of the party in power as a most
potent, extensive, and pervading party machinery”
Equal
Protection
“If the negro is free in law and fact, why is he not in the enjoyment of
the free will, the unfettered conduct and action of the white man?”
809

Trumbull’s speech after the veto was a mix of confusion and disappointment. His
bewilderment comes out, “I thought, in advocating it, that I was acting in harmony with
the views of the president.” Trumbull even explained that he agreed with Johnson in
recognizing that Southern states were still states of the Union. Trumbull would not say
whether or not they were in or out of the Union, but the vetoed legislation surely would
have put them on the road to re-incorporation. Perhaps one area of serious disagreement

809
Davis, 933-936.

358
might have come in the fact that the Senator did not believe that Southern states were
entitled to representation, at least not until they had “set up governments recognized as
loyal.” Regarding Johnson’s claim that only he represented the entire nation, Trumbull
responded, “He is no more the representative of those 11 states than I am.” Perhaps the
strangest part of Johnson’s veto message, for Trumbull, was that it declared the act
unconstitutional, but never pointed to the part of the Constitution it violated.
Furthermore, the Senator could not understand the president’s critique of military
involvement. Trumbull asked how the president could oppose such measures when he
himself had employed the military, and even courts martial, throughout the South. In a
particularly exasperating passage, Trumbull said:
The president believes it unconstitutional; I believe it Constitutional. He believes
that it will involve great expense; I believe it will save expense. He believes that
the freedman will be protected without it; I believe he will be tyrannized over,
abused, and virtually re-enslaved without some legislation by the nation for his
protection. He believes it unwise; I believe it to be politic…I regret exceedingly
the antagonism which his message presents.
810

Trumbull then called for the Senate to try to override the president’s veto. The
vote was in favor of passage, 30-18, but it fell two votes short of the necessary two-thirds
majority. The Globe notes there was “great applause in portions of the galleries and
hisses in other portions.” The sergeant-at-arms was then instructed to clear the galleries.
Table 68. Override Vote.
Yeas Nays Total
Republicans 29 7 36
Democrats 0 10 10
UU/U 1 1 2
Total 30 18 48

810
Trumbull, 936-943.

359
The very next day, Johnson was called upon to give a speech at an event
celebrating George Washington’s birthday. With his address, the Presidential-
Congressional tensions that had been kept under wraps suddenly became an open affair
for all to see.
811
Johnson had implicated the Radicals as just as treasonable as “the
Davises and Toombs, the Slidells and a long list of such.” Someone in the crowd yelled,
“Give us the names!” Johnson shot back, “A gentleman calls for their names. Well, I
suppose I should name to you those whom I look upon as being opposed to the
fundamental principles of the government and as now laboring to destroy them. I say
Thaddeus Stevens of Pennsylvania, I say Charles Sumner of Massachusettes, I say
Wendell Phillips of Massachusetts.”
812
Johnson then went on to accuse Stevens of
inciting an assassination attempt on the president. Altogether, “this was a silly speech of
an excited and wounded man.”
813
It gave the Radicals the kind of publicity that they
could not manage to get themselves. Riddleberger writes, “It is the character and psyche
of the man, in some combination of his strengths and weaknesses—courage, tenacity…
and a tendency to view public differences as personal vendettas.”

Johnson’s
contemporaries agreed. Secretary of the Treasury Hugh McCulloch said the president’s
“offhand public addresses…[were] bad in substance, bad in language, bad in style.”
Welles said, “Not that his remarks were not true, but the president should not be

811
Riddleberger, 85.

812
Quoted in Castel, 69.

813
Craven, 150.

360
catechized into declarations.”
814
Supreme Court Justice—and expert party organizer—
David Davis was most astute in commenting, “If he had vetoed the Freedmen’s Bureau
bill and said nothing…and then quit making speeches, he would have been pretty strong.”
Unfortunately, Johnson was “naturally very combative,” and did not understand that
presidential speeches were not the same as “canvass[ing] in Tennessee.”
815

The Washington’s Birthday address might have been the moment when Johnson
completely broke from the Republican Party. Craven comments, “With that, the lid was
off.”
816
Congress still did not have the numbers to override a presidential veto. Soon
afterwards, though, Congress passed the Civil Rights bill, another Moderate measure.
Johnson would again veto it, but this time, the Senate could override. After overriding
the Civil Rights veto, they came back to the Freedmen’s Bureau bill, passing the law
again by simple majorities. Johnson vetoed it, again. His veto message was shorter, but
still touched on all of his problems with the bill: states rights, military courts, and the
bill’s questionable Constitutionality. On the whole, Johnson felt “it falls clearly within
the reasons assigned in my [first veto] message.”
817
The same day Congress received the
president’s message, they overrode the veto and extended and empowered the
Freedmen’s Bureau.

814
Riddleberger, 84, 85

815
Quoted in Simpson, 95.

816
Craven, 150.

817
Andrew Johnson, “Veto Message” The American Presidency Project 16 July 1866.

361
Civil Rights Bill
Remarkably, even though Johnson had thoroughly frustrated, upset, and
confounded the Moderates, they nevertheless held him in good standing. In fact,
Moderates still controlled the agenda and still tried to find more ways to improve—not
eliminate—Presidential Reconstruction. During the Freedmen’s Bureau debates, another
bill had been introduced in the Senate that sought to aid Johnson’s plans. Introduced by
Lyman Trumbull, the Civil Rights bill looked to give blacks a minimum number of
protections. The bill defined national citizenship, saying that “all persons born in the
United States” were citizens. As such, everyone was entitled to the same rights,
including making & enforcing contracts, giving evidence, and holding & selling property.
All persons, black and white, were entitled “to full and equal benefit of all laws and
proceedings for the security of person and property.” The bill stipulated that anyone who
violated the provisions would be guilty of a misdemeanor, and subject to a fine of $1000
and/or a year-long prison sentence. Additionally, the bill put the interpretation of civil
rights litigation into the exclusive hands of federal judges. If any state-court defendant
thought their case involved a civil rights issue, they could have the case removed to the
federal level. In addition, federal arbiters included Bureau agents, and anyone whom the
president empowered for that specific reason. As if to recall the days of the Fugitive
Slave Law of 1850, judicial commissioners received payment by the number of cases
they heard. Those commissioners could also deputize anyone to help execute warrants.
Those posse members were also entitled to payment. Finally, the bill allowed the
president “to employ such part of the land or naval forces of the United States, or of the

362
militia, as shall be necessary to prevent the violation and enforce the due execution of this
act.”
818

Despite the calls for possible military occupation and federal (and possibly
military) intervention into the judicial handling of the bill, it was not a Radical bill.
Various historians have called it “a moderate measure,” “cautious & conservative,”
“unexceptional,” “fundamental,” and “reasonable.”
819
The essence of the bill was to
combat the Black Codes and write equality into the law. How the South actually dealt
with discrimination would be up to those individual states. The only thing banned by the
Civil Rights bill was the legalization of such discrimination. Foner writes, “It honored
the traditional presumption that the primary responsibility for law enforcement lay with
the states, while creating a latent federal presence, to be triggered by discriminatory state
laws.”
820

Congressional Debate: Trumbull and the Republicans
Once again, Senator Trumbull took on the main responsibility of defending his
own proposal. He explained the reasons why Congress could, and should get in on civil
rights legislation. For starters, the Constitution gave Congress the right to provide
uniform rules of naturalization, meaning Congress could declare who was or wasn’t a
citizen. In addition, the enacting clause of the Thirteenth Amendment allowed Congress
to make legislation that fought for the abolition of slavery. Given the Black Codes in the
South, blacks were quickly reduced back into a quasi-slave state. Trumbull articulated

818
“Civil Rights Bill,” 39
th
Congress, 1
st
Session. Congressional Globe, 316 (appendix).

819
Castel, 71; Carter 235-236; Simpson, 96; Riddleberger, 86; Craven, 154.

820
Foner, 245.

363
that any statute not equal to all deprived Americans of their civil rights. As an
encroachment upon liberty, such a law was “a badge of servitude” which the Thirteenth
Amendment had prohibited. Under these circumstances, Congress had “a right to pass
any law which…is deemed appropriate, and which will accomplish the end in view,
secure freedom to all people.” To the Illinoisan, civil rights were “great fundamental
rights,” which established “practical freedom.” Depriving one of civil rights was next to
enslaving him. In order to protect those liberties, Southerners had to know that their
infractions would be punished. As Trumbull mentioned, “A law is good for nothing
without a penalty.” He noted that situations might arise where military intervention
would prove necessary in enforcing the law.
821

Just like the debate on the Freedmen’s Bureau bill, Garrett Davis of Kentucky
immediately rose to challenge Trumbull’s initiative. Just like the Bureau bill, Davis
provided the most stirring—and long-winded—attack on the Civil Rights bill. In an odd
analogy, he viewed the Bureau and Civil Rights bill as Siamese twins, unable to live
without each other. He hoped that “the umbilical cord that connects these two measures
may be severed.” From there, Davis’s speech degenerated into a more personal attack.
He decried, “This bill is outrageous. I am amazed that any man who has read law can
shut his eyes against its enormous unconstitutionality.” Even more personal, he spoke of
Trumbull in a tone very uncommon for the Senate, “The honorable Senator is full of
conceit, but I have seen less conceit with a great deal more brains than he has.”
822

821
Trumbull, 474, 475, 476, 605.

822
Davis, 523, 524, 598.

364
Trumbull took the high road. Instead of responding directly to Davis’s personal attacks,
he tried to point out the bill’s Moderate nature. “This bill applies to white men as well as
black men,” he said. He tried to root the legislation in the basic concept of minimal civil
rights, and no more. He explicitly said, “This bill relates to civil rights only and I do not
want to bring up the question of negro suffrage in the bill.”
823

Thayer said detractors would not be able to use black suffrage as an excuse for
not supporting the bill. Voting “nay” essentially meant “voting against the protection of
the fundamental rights of citizenship and nothing else.”
824
Today, the argument for basic
civil rights would seem somewhat unnecessary. In 1866, it was somewhat novel. Wilson
said, “A true republic rests upon the absolute equality of rights of the whole people, high
& low, rich & poor, black & white.”
825
Henderson asked why shouldn’t Congress
declare every man to be a citizen; “I say that is perfectly right,” he answered.
826
Others
too thought the bill sustained “ordinary rights of a freeman,” “guarantees of the
Constitution,” and “the great fundamental civil rights.”
827
Daniel Clark believed that
citizens of one state ought to enjoy the same rights and privileges as those in another.
828

Wilson thought that civil rights legislation was actually unnecessary, because the
principles contained within the bill were so basic. Unfortunately, Wilson said,

823
Trumbull, 599, 606.

824
Representative M. Russell Thayer, 39
th
Congress, 1
st
Session. Congressional Globe, 1151.

825
Wilson, 1118.

826
Henderson, 571.

827
Howard, 504; CG, Thayer, 1153; CG, Wilson, 1118.

828
Clark, 528.

365
Confederate-packed Southern state legislatures had proven that they could not be trusted
with such straightforward liberties. “If the states would all observe the rights of our
citizens,” he explained, “there would be no need for this bill.”
829
A number of
Republicans thought the Civil Rights bill was necessary because of the oppressive Black
Codes. Burton Cook believed that the Codes “virtually re-enslaved” blacks, and that the
only proper remedy was national civil rights legislation. Otherwise, blacks would be left
“to the tender mercies of our enemies and theirs.”
830
Thayer called them “tyrannical
restrictions which grow out of and were a part of their condition of slavery.”
831
Another
Senator believed they had not been treated as citizens.
832
Even the ultra-conservative
Raymond admitted, “It is intended to prevent unequal legislation in those states affecting
them injuriously. That is a high and a proper object.”
833

Congressional Debate: Democratic Opposition
The Democratic opposition to the Civil Rights bill contained many of the same
arguments as the Freedmen’s Bureau offensive, with many of the same perpetrators.
Various Congressmen worried about the section that allowed the army to intervene in the
South. They believed it would lead to a “military despotism,” “military government,” or
“military dictatorship.”
834
Senator Cowan asked, “Are we going to substitute the bayonet

829
Wilson, 1117.

830
Cook, 1124.

831
Thayer, 1152.

832
Senator Lot Morrill, 39
th
Congress, 1
st
Session. Congressional Globe, 570.

833
Raymond, 1267.

834
Eldredge, 1155.

366
and the saber for argument and law and reason?”
835
His colleague Guthrie asserted that
the South was “entitled to some little consideration before you inflict military
government upon them.”
836
The cries of military courts were also raised, saying that it
would replace civil government.
837
Garrett Davis seemed particularly apprehensive
towards military judges. He claimed it took away one’s right to trial by jury. He said it
would “transfer military officers to those quasi-courts, and empowered those quasi-courts
to hear judicial cases and questions that can go Constitutionally only before the courts of
the United States.”
838

Unlike many of the other Democratic concerns in both the Civil Rights and
Freedmen’s Bureau bills, Republicans addressed this issue during the Civil Rights debate.
Henry Lane probably put it best when he said the military was necessary “because we
believe they [Southerners] will not do it, because we believe their people will not carry it
out.” He called that section of the bill “more important than any other,” explaining that
the military was necessary in order to execute the law. The intractable South also needed
federal judges to interpret civil rights lawsuits.
839
Wilson described how current US
Army commanders already had to intervene in Virginia to forbid the execution of Black
Code vagrancy laws.
840
Thayer talked about how the courts merely enforced equal rights.

835
Cowan, 604.

836
Guthrie, 600-601.

837
Cowan, 603.

838
Davis, 577-578.

839
Senator Henry S. Lane, 39
th
Congress, 1
st
Session. Congressional Globe, 603.

840
Wilson, 603.

367
Borrowing Democratic language, he commented, “It is a strange abuse of language to say
that a military despotism is established by wholesome and equal laws.”
841

As if party protocol demanded it, Democrats made the states rights argument once
again. Most of the claims centered on Constitutional qualms. Michael Kerr must have
seemed quite calm when he announced that he was not opposed to black civil rights, he
just thought the federal government did not have jurisdiction.
842
Likewise, Anthony
Thornton conceded that Congress could punish those who tried to re-institute slavery,
“but to go beyond that is to trench upon the rights of the states.”
843
Many made claims
that it conflicted with the rights of the states, or infringed on the states’s reserved
powers.
844
Others took a more hyperbolic route. If the feds could pass the Civil Rights
bill, they could “overturn the states themselves completely,” one Senator charged.
845

Never to be outdone on exaggerations, Saulsbury thought it would take away a state’s
police powers, which would “arouse the people of the whole country to a sense of
impending danger.” The Senator even seemed to threaten blacks, saying that the bill
would endanger peace and cause them “to be subject to their [Southern] violence.”
846

Using a by-now-outdated Calhounian vernacular, Rogers boomed, “[It is] the destruction
of the fundamental principle of the sovereignty of the states in violation of the

841
Thayer, 1153.

842
Kerr, 1268.

843
Thornton, 1156-1157.

844
Davis, 1265; Representative John Bingham, 39
th
Congress, 1
st
Session. Congressional Globe,1291; see
also Guthrie, 601; and Eldredge, 1154.

845
Cowan, 499.

846
Saulsbury, 478.

368
Constitution and the breaking down of the ties that bind the states.”
847
Republican
Samuel Shellabarger would have none of it:
It is meant, therefore, not to usurp the powers of the states to punish offenses
generally against the rights of the citizens in the several states, but its whole force
is expended in defeating an attempt, under state laws, to deprive races and the
members thereof as such of the rights enumerated in this act.
848

Many Democrats questioned the Constitutionality of the bill. Van Winkle did not
believe Congress could naturalize blacks.
849
They jumped on the notion that Trumbull’s
Constitutional justification came from his interpretation of the Thirteenth Amendment.
They believed it unshackled slaves, and no more.
Table 69. Unconstitutionality.
Congressman Quote
Davis “The amendment of the Constitution makes the negro free…It simply
abolishes the legal servitude of one man to another.”
850

Kerr “It gives no power to Congress to enact any such law as this…except
such only as is necessary to prevent the re-establishment of slavery.”
851

Thornton “The construction given to the Constitutional amendment by gentlemen
who advocate this bill is too broad.”
852

Saulsbury “Under the Constitutional amendment, you have no such power.”
853

Eldredge “There is no warrant in the Constitution to justify the law.”
854

Bingham “Has…Congress…the power to pass and enforce the bill?”
855

847
Representative Andrew Rogers, 39
th
Congress, 1
st
Session. Congressional Globe, 1122.

848
Representative Samuel Shellabarger, 39
th
Congress, 1
st
Session. Congressional Globe, 1294.

849
Senator Peter G. Van Winkle, 39
th
Congress, 1
st
Session. Congressional Globe, 497.

850
Davis, 577.

851
Kerr, 1268.

852
Thornton, 1156.

853
Saulsbury, 476.

854
Eldredge, 1154.

855
Bingham, 1291.

369

John Broomall tried to answer these complaints in a novel way, pointing out that
the Preamble might give Congress some leeway in legislating on civil rights.
856
One
Congressman believed the Legislature had no right to grant blacks citizenship. He cited
Dred Scott, announcing that the Court had decided that “negroes in this country, whether
free or slave, are not citizens or people of the United States…therefore no law of
Congress or of any state can extend to [blacks]…the status of citizenship.”
857
Finally, the
usually Southern-biased James Guthrie took an obviously dishonest stance, saying he was
unwilling to vote blacks into the duties of citizenship without their consent to the
responsibilities that it entailed.
858

Not all Democrats were as concerned with blacks’s consent as Guthrie. Once
again, racism reared its ugly head. To be fair, the racist comments this time around were
less direct. Instead of targeting blacks, detractors went for white supremacy. Cowan
accused the bill of trying to break down “all laws in the states which create distinctions
between black men and white ones,” as if it were a bad thing.
859
Calling it “offensive,”
Davis believed the US “was founded by and for white men…When a negro…is
attempted to be obtruded into it, the sufficient cause to repel him is that he is a negro.”
860

856
Broomall, 1263.

857
Rogers, 1120.

858
Guthrie, 526.

859
Cowan, 603.

860
Davis, 575.

370
Van Winkle coldly announced, “I do not believe that a superior race is bound to receive
among it those of an inferior race.”
861

Finally, once again, a trio of Democrats (a different set this time) took the
opportunity to raise up the president. Some of the most dogmatic men in Congress, they
praised Johnson even more this time around. Eldredge endorsed Presidential
Reconstruction because it was policy best at maintaining the proper place of the states.
862

As if to warn of what was coming next, Kerr reminded Republicans what had happened
with the Freedmen’s Bureau bill: “The president, more faithful to the Constitution than
they…cast them into mourning by his late invincible veto.”
863
Rogers was even more
praiseworthy and more forewarning:
It is nothing but a relic of the Freedmen’s Bureau bill, which was vetoed by the
President of the United States; and it strikes me that the object in attempting now
to carry this bill through Congress is merely to compel that high functionary, that
noble, honest, Constitution-loving man, the President of the United States, to put
his veto upon it because it violates the wisdom of our fathers, and aims a blow at
those principles of American liberty for the vindication of which they fought
against the tyranny of King George of England.
864

Veto of the Civil Rights Bill
The Civil Rights bill passed the Senate 33-12 and the House 111-38. Johnson
subsequently vetoed the bill, despite the more-than-two-thirds majorities that had passed
the legislation. Why did he do it? For starters, he had policy objections. Perhaps most
prominent, Johnson did not see the necessity or salience of black citizenship. He kind of

861
Van Winkle, 498.

862
Eldredge, 1158.

863
Kerr, 1270.

864
Rogers, 1121.

371
put Republicans in a Catch-22 in regards to black citizenship. Johnson said that if all
native-born persons are citizens by virtue of the Constitution, as many Congressmen had
argued, then “the passage of the pending bill cannot be necessary to make them such.”
On the other hand, if they were not citizens, then deciding national citizenship for a
legislature with 11 missing regional members was unfair. Besides, Johnson insisted, “it
may also be asked whether it is necessary that they should be declared citizens in order
that they may be secured in the enjoyment of the civil rights proposed to be conferred by
the bill.” Hammering down his argument, Johnson warned that if Congress could declare
who had the right to testify and make contracts, then the branch would also have the right
to determine who could hold office, and even worse, vote.
The president had Constitutional reservations, starting with his paranoia about
protecting states rights. He stated, “The power to confer the right of state citizenship is
just as exclusively with the several states as the power to confer the right of federal
citizenship is with Congress.” As mentioned, he was deeply troubled by denied Southern
representation. Additionally, the president felt the sections of the bill dealing with
federal judges “invades the judicial power of the state.” Johnson didn’t like handing the
state jurisdiction to federal courts because it implied that state judges would not
administer state laws in a fair manner. “The question here naturally arises,” Johnson
said, “from what source Congress derives the power to transfer to federal tribunals certain
classes of cases.” Ultimately, the bill the authorized “the exercise of powers that are not,
by the Constitution, within the jurisdiction of the courts of the United States.” Moreover,
Johnson indicated that the bill called for a “permanent military force.” Johnson saw

372
danger in combining military occupation with specially-created courts. He said the bill
would “resuscitate the spirit of rebellion.”
865

Finally, in analyzing the Civil Rights veto, we must keep in mind that Johnson
was a stubborn racist who had far-reaching political ambitions. Riddleberger comments,
“He was determined not to deviate from his established policy; thus the veto was the only
alternative open to him.”
866
The president was even quoted, “I am right. I know I am
right, and I am damned if I do not adhere to it.”
867
Foner observes, “What was most
striking about the message was its blatant racism.”
868
Using the issue that most deeply
set off Southern racists, Johnson declared that the bill would lead the country down the
road of inter-racial marriage. “The bill will override laws that say ‘no white person shall
intermarry with a Negro or mulatto,” he cautioned.
869
Finally, he believed his future
ambitions were tied to Presidential Reconstruction. Because the Civil Rights bill
threatened his program, so he thought, he had to veto it. Additionally, the veto was
another step in a consistent pattern of placating Southerners, presumably the future
stronghold of Johnson’s electoral base.
Congressional Response to the Veto
The Congressional debate immediately following the veto showcased many of the
same attributes as that which occurred before it reached the White House. Both for

865
Andrew Johnson, “Veto Message” The American Presidency Project (27 March 1866).

866
Riddleberger, 91.

867
Quoted in Castel, 72.

868
Foner, 250-251.

869
Andrew Johnson, “Veto Message” The American Presidency Project (27 March 1866).

373
Democrats and Republicans, many of the issues (e.g., equality, states rights, etc.)
remained the same. The main speakers took the floor for each side. Still, both parties
introduced some new concerns. The main difference between the pre-veto and post-veto
conversation was a sense that the Republican Party was breaking down. Naturally,
growing animosity accompanied the collapse. Nothing demonstrated that tension like the
fist fight that broke out in the galleries during a Senate session.
870

Republicans still believed that the Thirteenth Amendment covered the bill, giving
the government the means to pass any law necessary to eliminate what they considered
slavery. They still believed that civil rights were an important part of American political
society, to “be possessed and enjoyed…equally.” And they still believed that the Black
Codes were purposeful obstructions to such enjoyments. One Representative said it
would be “barbarous, inhuman, infamous to turn over 4 million liberated slaves…to the
fury of their rebel masters.”
871
A colleague in the upper house thought it “would be much
more desirable that the states should do it themselves.” Unfortunately, it had become too
easy for Southern states to avoid granting civil rights to blacks.
872

Democratic and Conservative Republican positions did not hedge either. They
still believed that the bill infringed on normal judicial processes.
873
Democrats clung
tightly to their precious states rights. Cowan argued the bill was outside the bounds of

870
See 39
th
Congress, 1
st
Session. Congressional Globe, 1786.

871
Representative William Lawrence, 39
th
Congress, 1
st
Session. Congressional Globe, 1833.

872
Stewart, 1785.

873
Cowan, 1782; see also Lawrence, 1837 for the Republican party line.

374
federal jurisdiction.
874
Doolittle concerned himself with “the preservation of the rights of
the states.”
875
They still rushed to defend Andrew Johnson. Reverdy Johnson said, “The
president, then, I think is right,” but lamented that the president had only expressed doubt
about—rather than denounced—Congress’s actions.
876
McDougall announced, “The
President of the United States is a Constitutional officer, clothed with high power, and
clothed with the very power which he has exercised in this instance.”
877
And sure
enough, racism came out.
878
Perhaps the only difference this time around for detractors
was a brief attack on the bill’s policy implications. Senator Cowan thought it would be
bad policy, and would not attain the ends that Moderates and Radicals had hoped. He
addressed blacks, “Your remedy is no remedy at all.” Moreover, it conferred “upon
women, upon minors, upon idiots, upon lunatics, and upon everyone native born in all the
states, the right to make and enforce contracts.”
879

As with the Freedmen’s Bureau bill and the original passage of the Civil Rights
bill, Lyman Trumbull and Garrett Davis took the lead for their respective parties during
the Congressional debate on the veto. Trumbull was astonished that the president had not
signed his Civil Rights bill. “I fully share with the President of the United States the
regret expressed that he was unable to sign the bill,” he said. The Senator also suggested

874
Cowan, 1782.

875
Senator James R. Doolittle, 39
th
Congress, 1
st
Session. Congressional Globe, 1806.

876
Johnson, 1777.

877
McDougall, 1786.

878
Saulsbury, 1809.

879
Cowan, 1781, 1782.

375
that he had gained personal assurances from Johnson that the bill would not meet a veto.
He spoke, “I regret it on my own account, because the just expectations raised when this
bill was presented to the president before its introduction into the Senate have been
disappointed.” Trumbull thought the overall tone of the veto message was harsh, that it
encroached upon Congressional rights, and “must eventually lead to a subversion of the
government and the destruction of liberty.”
Trumbull took on each of Johnson’s criticisms. He said the Thirteenth
Amendment “authorizes us to do whatever is necessary to protect the freedman in his
liberty.” The Illinoisan defended the punishment clauses as “the vital part of this bill.
Without it, it would scarcely be worth the paper on which the bill is written.” Trumbull
accused Johnson of misinterpreting the judicial sections of the law. In fact, only “by a
strained construction,” could the president not clearly understand its provisions. In terms
of the lack of Southern Congressman, he charged, “their being unrepresented is their own
fault.” He blamed Johnson for extending the ballot to rebels, and ushering in the Black
Codes. Towards the end of the speech, Trumbull gave his account of where the president
stood. Ironically, Trumbull accused Johnson of violating states rights by arrogating too
much power. He also summed up what he saw as Johnson’s stance on blacks:
Whatever may have been the opinion of the president at one time as to ‘good faith
requiring the security of the freedmen in their liberty and their property’ it is not
manifest from the character of his objections to this bill that he will approve no
measure that will accomplish the object.
880

Davis’s retort is instructive in showing how Democrats and Republicans were
polarizing. He mocked Trumbull’s bill, saying it should have been titled, “An act to

880
Trumbull, 1755-1761.

376
consolidate all the reserved sovereignty and powers of the several states into the
Congress and government of the United States.” He brought up the familiar states rights
and racist arguments, but they were edgier than before. His states rights defense had the
arrogant and vehement tone of the 1830s: “Every man with ordinary knowledge of the
civil history of our country knows that before the adoption of the Constitution all the
states were sovereign…[in] only a league…made by independent nationalities.” They
still retained that original sovereignty, and had all powers not expressly given to the
federal government. Moreover, Davis said, “There are civil rights, immunities, and
privileges ‘which ordinances, regulations, and customs’ confer upon white persons
everywhere in the United States and withheld from negroes.” He brought up the example
of segregated seating on steamships, and warned that such legislation “bring the two
races upon the same great plane of equality.” Finally, Davis provided perhaps the most
praiseworthy analysis of Johnson:
It proves him to be possessed of the very highest order of moral courage, integrity
of intellect, and patriotic purpose; and the able and unanswerable arguments
against their Constitutionality and policy, embodied in his veto messages, afford
the most satisfactory testimony of his preeminent fitness for the office which he
fills.

Davis was one of a handful of politicians who recognized that the Republican
Party had splintered and that the party system was breaking down. He accused
Republicans of first supporting the president’s policies, and then turning on &
denouncing Johnson, even threatening impeachment.
881
Trumbull noted it too,
commenting, “I regret it…because it is calculated to alienate him from those who

881
Davis, 181-185 (appendix).

377
elevated him to power, and would gladly have rallied around his administration.” The
Senator made no effort to hide the fact that it was Johnson’s fault: “The American people
should know that the controversy which exists between him and Congress…is of his own
seeking.”
882
Influential Conservative James Doolittle implicated Ben Wade of reneging
on his initial support of the president. “If this spirit of denunciation of the president by
Congress and of Congress by the president is to prevail, what hope is there of the
ascendancy in the future of the Union or Republican Party?”
883
The Radical Wade was in
no mood to be lectured. He called Johnson “an emperor, a despot, and not a President of
the United States.” Wade pointed the finger at Johnson for “the quarrel he has picked
with Congress from the very commencement.” Fuming, Wade unleashed an
unapologetic tirade:
A man formerly associated with us upon this floor; who was no more infallible
than the rest of us poor mortals; and yet the moment, by death or accident, he is
placed in the executive chair, it would seem as if some Senators believed him to
be endowed with superhuman wisdom and ought to be invested with all the
powers of this government…I say to you, Senators, we the majority who are
stigmatized as traitors, are the only barrier today between this nation and anarchy
and despotism…The treachery of a man who betrayed our confidence, got into
power, and has gone into the camp of the enemy, and joined those who never
breathed a breath of principle in common with us.
884

Remarks on the Vetoes
Wade’s anger typified the passion on both sides of the aisle. Radicals had been
antagonizing Johnson after the Freedmen’s Bureau veto. Stevens had had the Clerk of
the House read a statement from a newspaper that Johnson was “an insolent, clownish,

882
Trumbull, 1755.

883
Doolittle, 1806.

884
Wade, 1802.

378
drunkard.”
885
After the veto, Willard Saulsbury asked the Senate if they thought the
South would just sit back while Dixie became overrun by “your free negro agents sent by
free negro commissioners because you have got the power under this bill to appoint free
negro commissioners and they have the power to send free negro agents.” “No sir,” the
Senator answered, “They would sooner see every foot of their soil drenched in blood.”
886

Even Johnson’s own Cabinet had questioned the president’s actions. Every
Cabinet member, except Seward and Welles, had hoped Johnson would sign the bill.
887

Secretary of the Treasury Hugh McCulloch pulled his support for the president after he
vetoed the bill. Both Postmaster General William Dennison and Secretary of the Interior
James Harlan resigned after the veto. Attorney General James Speed followed soon
after.
888
For its part, Congress overrode the president
Table 70. Senate override of Civil Rights veto.
Yeas Nays Total
Republicans 32 5 37
Democrats 1 9 10
UU/U 0 1 1
Total 33 15 48

Table 71. House override of Civil Rights veto.
Yeas Nays Total
Republicans 115 1 116
Democrats 2 34 36
UU/U 5 6 11
Total 122 41 163

885
Quoted in Craven, 155.

886
Saulsbury, 1809.

887
Foner, 250-251.

888
Gary L. Donhardt, In the Shadow of the Great Rebellion: The Life of Andrew Johnson, Seventeenth
President of the United States (New York: Nova Science Publishers, 2007): 94.

379
The House of Representatives proved no problem for Republicans. The winning
margin in the Senate, though, was only two votes. The circumstances surrounding that
margin are dubious. Republicans in the Senate had stacked the deck in order to override
Johnson’s veto. First, they refused to seat John P. Stockton of New Jersey, who was a
Johnson supporter. New Jersey law at the time said that a Senator had to win a majority
of votes in both houses of the state legislature. Democrats had a 13-8 majority in the
upper house, but the lower house split 30-30. Deadlocked in the lower house, Democrats
proposed to elect a Senator based on a plurality vote of the two combined houses. That
motion passed, and naturally, they elected Stockton. When the US Senate convened in
December, the issue went to the Judiciary Committee, where Chairman Trumbull said
that Stockton had been illegally chosen. Only one Senator dissented in that December
meeting. They reopened the issue on March 23, and for a moment, Stockton seemed
ready to take his seat as the Senate voted 21-20 in favor of accepting the Jerseyan. Lot
Morrill of Maine, though, had abstained. After another round of voting, the reliable
Morrill added his name to the Republican ranks, deadlocking the vote at 21-21. Stockton
argued that he had a right to vote, which of course, would break the tie. The Senate did
not allow him to vote. The Senate set aside the issue until March 27, the same day
Johnson issued his Civil Rights veto message. This time, they dismissed Stockton by a
vote of 23-20. Ostensibly, they did so because they knew they needed every single vote
if they were going to get the two-thirds necessary to override.
It actually took more than just the unseating of Stockton. Solomon Foot of
Vermont had died just a week before the Senate vote, and had been replaced by George

380
Edmunds. Though both were Republicans, Edmunds was a Radical, while Foot was a
Conservative, having even voted against the ironclad oath for Senators. Democrat
William Wright and Conservative James Dixon had been ill and stood poised to miss the
vote. Wade did not care, “If God Almighty has stricken one member so that he cannot be
here to uphold the dictation of a despot, I thank Him for His interposition, and I will take
advantage of it if I can.” Altogether, the Republicans operated under some shady
circumstances in obtaining their supermajority.
Still, they had overridden Johnson, the first time Congress had enacted important
legislation over a veto. Referencing another 19
th
-century outcast president, Moderate
John Sherman wrote to his brother, William Tecumseh Sherman, “As to the president, he
is becoming Tylerized.”
889
Congressman Dawes believed that Johnson had furnished
Republicans “with material fuel for the flame, depriving every friend he has of the least
ground upon which to stand and defend him.”
890
But had the president abandoned
Congress, or vice versa? It depended on whom one asked. An exasperated Trumbull
noted, “The [Civil Rights] bill was framed, as was supposed, in entire harmony with what
he was then and has since been doing in protecting freedmen in their civil rights
belonging to the rebellious states.” Trumbull thought the veto came out of nowhere, and
forced Moderates to back away from Presidential Reconstruction.
891
Meanwhile, the
Conservative James Lane stated, “All we have to do…is join with him [Johnson]…hand

889
Quoted in Riddleberger, 103.

890
Quoted in Simpson, 97.

891
Trumbull, 1760.

381
to hand, shoulder to shoulder, and again restore this country to peace, prosperity, wealth,
and dignity.”
892

Many historians believe the veto and override of the Civil Rights bill was the
moment in which Johnson broke from the Republican Party, and vice versa. Castel says
it “turned friends into enemies, united Moderates and Radicals, and ruined any realistic
chance he had of retaining the presidency.”
893
Foner writes, “For Republican Moderates,
the Civil Rights veto ended all hope of cooperation with the president.”
894
Riddleberger
calls it “the break between Executive and Congress.”
895
No doubt, a certain amount of
damage had been done. Carter deemed it the “decisive moment,” when Johnson broke
from the Republican Party.
896
And it is at this moment where we get our first glimpse of
the dichotomous visions of Reconstruction. Previous to the veto, there had been five
plans (Radical, Moderate, Conservative, Democratic, Presidential). After the Civil
Rights bill, they consolidated into two plans—Presidential and a yet-to-be-defined, but
still solid “Radical/Moderate,” where neither Radicals nor Moderates had a hold on the
majority left of the president.
It would have been tough, still, there might have been time for Johnson to save his
coalition. I don’t think the Civil Rights bill was the death knell of the Conservative-
Democratic coalition. Nonetheless, in looking back, we can confidently say that at the

892
Lane, 1803.

893
Castel, 71-72.

894
Foner, 250-251.

895
Riddleberger, 104.

896
Carter, 235-236.

382
very least, it helped pave the way for Johnson’s demise. Most importantly, it provided
Radicals a chance to influence Moderate policy. That meant Constitutionalizing the Civil
Rights bill. And ultimately, it was Johnson’s reaction to the Fourteenth Amendment that
proved to be the tipping point in the Radical takeover. Again, though, if the battle over
civil rights teaches us anything, it is that two distinct visions of Reconstruction were
emerging.
Fourteenth Amendment
Following the Freedmen’s Bureau and Civil Rights debacles, Republicans sought
to entrench their preferences into the actual governing document. Passing the two-thirds
requirement for overriding a veto, they knew they had the numbers to legislate a
Constitutional amendment. They indeed took that route, passing the Fourteenth
Amendment, which had five sections. Section 1 used the same language as the Civil
Rights bill. It made federal and state citizens out of all who were born in the US. It
banned states from making laws that restricted the privileges and immunities of those
citizens, as well as guaranteed due process against deprivation of life, liberty, or property.
Finally, it forbade states from denying equal protection of the laws.
Section 2 re-made the rules for representation in the House and subsequently, the
number of Electoral College votes. It stated that states would receive representation
based on the total number of citizens if those states did not deny the ballot any male 21
years or older. (A special exception was allowed to deny criminals and rebels.) If a state
did deny suffrage to any such males (presumably, black males), then its representation
would be based on the proportion of male voters to all males 21 or older. For example,

383
assume a state has 6 white men over 21, 4 black men over 21, and 10 women & children,
for a total of 20 residents. If the state allowed all men over 21 to vote (the 6 white men &
4 black men), then the state would receive representation for 20 citizens. However, if the
state denied the ballot to blacks, it would only receive a proportion of its full
representation. That ratio would be based on the number of 21+ males voters to all 21+
males. Thus, in our example, the ratio would be 6:10, or 60% (6 white males over 21:10
males [white & black] over 21). The state would then get 60% of its due representation
(i.e., 60% of 20 total citizens). Therefore, the state would receive representation for 12
residents.
Section 3 banned all former government officials—including Congressmen,
judges, and state legislators—who aided the rebellion from ever serving in a similar
federal or state function. Section 4 upheld the federal war debt, promising to pay it back.
Meanwhile, it outlawed paying back any part of the rebel war debt, including
compensation for emancipated slaves. The final section gave Congress the power to
enact legislation to enforce the provisions of the Amendment.
The Joint Committee on Reconstruction wrote the Amendment on April 28. It was
introduced on April 30, and debate in the House started a week later. Debate in the
Senate began nearly a month later. The House voted on the original proposal, while the
Senate modified the Amendment somewhat. The House soon agreed to the Senate’s
modifications. Overall, it sought to Constitutionalize what had already been passed in
law-form: the Civil Rights bill. It wanted to place civil rights safely in the Constitution,

384
where no future Democratic Congress could touch it.
897
Trumbull wanted to keep the
issue away from the president: “I have no faith in his good intentions,” the Senator told
his wife, “How could I after he so deceived me about the Civil Rights bill and the
Freedmen’s Bureau bill?”
898

The Amendment represented the Radical/Moderate coalition. Although Radicals
still pushed for black suffrage, Moderates were not yet willing to go that far. Section 2
did represent an effort to induce black suffrage from the Southern states, but it did not
order those states to grant blacks the ballot. It mainly looked to firmly ground civil rights
into the Constitution itself. On that basis, one writer calls it “clearly a Moderate
measure.”
899
The Presidential ideology was clear—no black political rights, and an
emphasis on quick Southern re-integration, even at the cost of black civil rights. The
Radical/Moderate platform, on the other hand, had yet to be written; and the Fourteenth
Amendment certainly was not that platform. But it did represent the areas of consensus,
a compromising measure that both wings of the coalition could agree on. It did help
consolidate the two groups into forming the opposition coalition to the Presidential
faction. Even as the Fourteenth Amendment passed both houses of Congress, neither
Radicals nor Moderates had a firm grasp on the coalition. But the fight to pass it helped
identify the Radicals/Moderates as entirely, and finally, distinct from Johnson’s
supporters.

897
Carter, 242; and Mantell, 15-16.

898
Quoted in Simpson, 100.

899
Simpson, 102.

385
Eventually, the Radical/Moderate platform would play itself out through the 1866
midterm elections. Those elections would largely be a repudiation of Johnson, which the
Radicals had been calling for a long time. Riddleberger believes Republicans agreed,
“now the party had a platform to stand on for the approaching election.”
900
I’m not sure
that’s true. The Fourteenth Amendment itself did not design a platform. Instead, it
provided the campaign issue, causing Johnson to react. In doing so, he became utterly
distasteful to the nation, and a new wave of legislators rode into Washington. The
selection of those Congressmen determined the Republican platform. For this reason, the
Fourteenth Amendment is rightfully seen as an electoral ploy to give the country
something of substance on the Radical/Moderate coalition, as well as to bait the president
into responding. With a critical mass of Moderates, the Radicals/Moderates could not
campaign on black suffrage. It alienated too many Moderates who still believed black
voting rights was not a necessary component to successful reconstruction. Instead, the
party drafted an Amendment that: 1) broke from the president; 2) all Radicals and
Moderates could agree on; and 3) played popularly in home districts. As Foner writes,
“The Fourteenth Amendment was framed with the elections of 1866 very much in
mind.”
901

With the election right around the bend, Republicans felt that the spring of 1866
might be their only chance to pass such an amendment. They did not know how the
electorate would respond to the emerging Congress-president fighting. Many politicians

900
Riddleberger, 157.

901
Foner, 257.

386
noted that they should pass the Amendment while they still had the two-thirds majority.
Stevens wanted civil rights Constitutionalized because he knew “the first time that the
South with their Copperhead allies obtain the command of Congress, it [the Civil Rights
bill] will be repealed.”
902
He was “anxious” to adopt the Amendment before Congress
was “flooded by rebels and rebel sympathizers.”
903
Broomall agreed saying that if the
Democrats ever took over, they would revert back to “their old habit of obedience to the
Southern task-master.”
904
Spalding gave the same account, pointing out that the
Fourteenth Amendment would be entrenched in the safety of ratification by the states.
Even if Republicans lost control of Congress, it would be tough for Democrats to go
through the re-amendment process.
905
His colleague Miller put it best, “It is not likely it
will ever be altered.”
906
Bingham believed Congress should do it simply because the
amendment process did not include the president.
907
For what it was worth, Democrat
Finck saw what the Republicans were doing, “[They are] afraid that power may pass
from the hands of [their] party, and that Democrats may again be in the majority on this
floor.” He then predicted, “I believe the time will soon come.”
908

902
Stevens, 2459-2560.

903
Stevens, 3148.

904
Broomall, 2498-2500.

905
Representative Rufus P. Spalding, 39
th
Congress, 1
st
Session. Congressional Globe, 2509-2510.

906
Representative George F. Miller, 39
th
Congress, 1
st
Session. Congressional Globe, 2510.

907
Bingham, 2451-2453.

908
Representative William E. Finck, 39
th
Congress, 1
st
Session. Congressional Globe, 3145-3146.

387
Congressional Debate: Section 3 in the House
On May 8, 1866, the House of Representatives opened formal debate on the
Fourteenth Amendment. On May 7, Thaddeus Stevens had tried to lay some ground
rules, proposing that Representatives confine their speeches to a 30-minute limit. His
justification was that because many Congressmen who wished to speak, it would have
taken an exceptionally long time if everyone were allowed to drone on. Glenni Scofield
asked Stevens, “How many gentlemen have signified their intention to speak?” Stevens
responded, “Oh, there is a list as long as my arm.”
909
Incidentally, later on the debate,
Strouse became visibly upset and commented, “We hear some six or eight stump
speeches every day, and in truth, not very courteous or good at that.”
910

Table 72. Section 3.
Original Section 3 Modified Section 3
“Until the Fourth day of July in the year
1870, all persons who voluntarily adhered
to the late insurrection, giving it aid and
comfort, shall be excluded from the right to
vote for Representatives in Congress and
for electors for President and Vice-
President of the United States.”
“No person shall be a Senator or
Representative in Congress, or an elector of
President and Vice President, or hold any
office, civil or military, under the United
States, or under any state, who, having
previously taken an oath as a member of
Congress, or as an officer of the United
States, or as a member of any state
legislature, or as an executive or judicial
officer of any state, to support the
Constitution of the United States, shall
have engaged in insurrection or rebellion
against the same…”

The most-discussed item in the House turned out to be Section 3 of the initially
proposed amendment. Originally, the Amendment called for the disfranchisement of

909
Stevens, 2433.

910
Strouse, 2531.

388
rebels in Congressional and presidential elections until July 1870. The House actually
passed this version of the Amendment before the Senate changed it. Before the House
agreed to the Senate’s changes, many Representatives devoted sizable chunks of their 30
minutes to discussing whether or not former Confederates should be banned from voting
for federal officers. On the whole, Republicans used the “can’t trust rebels” defense with
the ballot. Kelley asked if the US should place its trust in those who “sustained bloody
war for its overthrow” and led “the most gigantic rebellion since that which Satan
led?”
911
Samuel McKee announced that he didn’t trust even “the most intelligent traitor.”
He could not understand how Democrats were “clamorous for the support of men who
have been engaged in treason and whose hands are yet reeking with the blood of more
than 300,000 loyal slain.”
912
Another refused to admit any representatives until those
delegates had been elected by a loyal population.
913
Rufus Spalding pointed the finger at
the president, saying the difference between Johnson’s and Congress’s plans were that
Johnson would receive rebels back, immediately and unconditionally.
914
One Republican
suggested that giving rebels access to the ballot would “permit them to gain everything,
through Congressional action, that they sought to accomplish by arms…Scarcely had the
smoke of battle cleared…before the vice president of the Confederacy is demanding a

911
Representative William D. Kelley, 39
th
Congress, 1
st
Session. Congressional Globe, 2467-2469.

912
McKee, 2504-2505.

913
Boutwell, 2508-2509.

914
Spalding, 2509-2510.

389
[Senate] seat.”
915
John Farnsworth used similar language, “Having failed to destroy the
government by a resort to arms, now only once let them in here under the old
apportionment…They would elect for the next President not Andrew Johnson, as some
suppose, but Robert E. Lee.”
916

Speaking from experience as the former military governor of Reconstruction
Louisiana, Nathaniel Banks said:
It is impossible to organize a government in the insurgent states and have the
enemies of the country in possession of political power in whole or in part, in the
local governments or in representation here…The proposition is for the loyal
states to determine upon what terms they will restore to the Union the insurgent
states. It is not necessary that they [Southern states] should participate in our
deliberations upon this subject, and wholly without reason that they should have
the power to defeat it.
917

A few Congressmen took the opportunity to mock Andrew Johnson’s claim that
he would “make treason odious.” One called the president out: “The manner in which the
present administration has punished treason has made it not odious.”
918
Only by
prescribing punishments—like disfranchisement—could the United States tell rebels that
treason is odious.
919
Congressman Eckley stated, “So help me God, I will never vote to
admit unconditionally a rebel Representative…In that way, I shall contribute in rendering

915
Representative Ephraim R. Eckley, 39
th
Congress, 1
st
Session. Congressional Globe, 2534-2536.

916
Farnsworth, 2539-2540.

917
Representative Nathaniel P. Banks, 39
th
Congress, 1
st
Session. Congressional Globe, 2531-2533.

918
Broomall, 2498-2500.

919
Spalding, 2509-2510.

390
‘treason odious.’”
920
Farnsworth also mentioned that “making ‘treason odious’ and
traitors infamous” involved stripping Confederates of the right to vote.
921

Quite a few Democrats took aim at the Republican Party for, what they
considered, unashamed partisanship. They accused Republicans of trying to change the
US Constitution in an effort to keep the Democratic South out of Congress and the White
House. One Representative cried, “The Constitution was never intended to be plastered
and patched.” Benjamin Boyer stated it gracefully, “They are no guarantees for the
safety of the Republic…but guarantees for the safety of the Republican Party.”
922
One
Democrat believed the Republicans wanted to “hedge themselves in power.”
923
Eldredge
accused the resolution of originating not in the Committee on Reconstruction, but in a
party caucus for party purposes.
924
Kentuckian William Randall thought the whole bill
was terribly confusing and impossible to unpack, except for the “clearly apparent” fact
that it was designed to secure the success of the Republican Party.
925
No one hit on the
partisanship attack quite like William Finck, a member of the House, who sarcastically
noted:
The majority of the committee have made a most wonderful discovery…and have
gravely announced to the world that a citizen of the United States who is now
entitled to vote, but whose loyalty is suspected, would be an unsafe voter in 1866,
or even in the presidential election of 1868…I trust gentlemen have no design in

920
Eckley, 2534-2536.

921
Farnsworth, 2539-2540.

922
Representative Benjamin M. Boyer, 39
th
Congress, 1
st
Session. Congressional Globe, 2466-2467.

923
Shanklin, 2500-2501.

924
Eldredge, 2505-2507.

925
Representative William H. Randall, 39
th
Congress, 1
st
Session. Congressional Globe, 2530-2531.

391
this proposition to disfranchise nine-tenths of the voters of 11 states, unfairly to
perpetuate their political power, or to influence the next presidential election.
926

Finck went on to say that the only disunion party in Congress was the Republican
Party. The record notes there was laughter on the Republican side of the House.
927
Still,
even some Republicans admitted that the Amendment opened the door for such charges.
“It exposes the Union Party to the suspicion…of seeking to amend the Constitution for
the purpose of influencing and controlling the presidential election of 1868,” commented
the Conservative Raymond.
928
Schenk echoed, “It will be said everywhere that this is
purely a piece of political management in reference to a presidential election.”
929
The
Radical McKee seemed to accept it for what it was: “When the charge comes to me that I
desire these propositions carried out in order to perpetuate the strength of a political
party, I reply I do desire that party still to rule this land, because they alone having been
loyal, they alone should rule.”
930
How could Republicans not turn to disfranchisement
when “every traitor of the South and every sympathizer with treason in the North sustains
the policy of the Democratic Policy.”
931

Democrats also worried about stripping voting rights from Confederates after
Lincoln’s Amnesty Proclamation seemed to grant them amnesty. Blaine feared that the
Amendment would effectively nullify the pardons. He said it deprived Southerners of

926
Finck, 2464.

927
39
th
Congress, 1
st
Session. Congressional Globe, 2464.

928
Raymond, 2501-2503.

929
Representative Robert C. Schenck, 39
th
Congress, 1
st
Session. Congressional Globe, 2471.

930
McKee, 2504-2505.

931
Boutwell, 2508-2509.

392
their civil rights, which a full pardon restored to them.
932
Blaine seemed to convince
Raymond, who admitted it was “a very strong point.” Raymond could see how the
disfranchisement could run counter to the terms of presidential pardons. He concluded,
“There is great force in that objection.”
933
Stevens admitted, “A pardon removes all
liability to punishment from a crime committed. But there is a vast difference between
punishing for a crime and withholding a privilege.” Naturally, Stevens believed that
voting was a privilege, and could be withheld.
934
Schenck backed up the Radical leader,
“There is nothing that should be regarded as penalty or punishment in this third
section…It takes nothing away from the people of those states. It does not disfranchise,
but refuses to enfranchise.”
935
Banks, who had dealt with pardoned Louisianans said the
pardon had no bearing on the House’s self-determination to receive its own members.
936

Just like the generous pardon, some Republicans were upset that the terms of the
third section were so easy-going on the South. Stevens claimed that his only objection to
it was that it was “too lenient for my hard heart.” He first wanted the ban on voting to
extend to 1876, and to apply to municipal elections as well.
937
A couple days later, he
wanted it to last “not only to 1870, but to 18070.” He claimed that Southerners deserved
humiliation, especially since they were unwilling to confess their sins. Sensing his fellow

932
Representative James G. Blaine, 39
th
Congress, 1
st
Session. Congressional Globe, 2460.

933
Raymond, 2501-2503.

934
Stevens, 2463.

935
Schenck, 2469-2471.

936
Banks, 2531-2533.

937
Stevens, 2459-2460.

393
Pennsylvanian had gone too far, Thayer asked Stevens, “Can [you] build a penitentiary
big enough to hold 8 million people?” Stevens answered he could, “at the point of the
bayonet down below.” That is, by military occupation in the South. If they threatened to
come to Congress, “we will shoot them. That is the way to take care of these people.
They deserve it, at least for a time.”
938
Miller declared, “They ought to thanks their God
that they have been dealt with so leniently.”
939

Garfield asked, if rebels could not be trusted to vote in January 1870, what made
them worthy sixth months later? He thought “the fixing of an ordinary date…is
indefensible.” Thus, he proposed to exclude forever those who participated in the
rebellion from voting for federal officers.
940
Farnsworth agreed, “If the rebels are to be
disfranchised at all, they should be for a longer period.”
941
Schenck responded that
secession was a crime, and that five years of disfranchisement seemed like the
appropriate penalty.
942
Longyear objected “not that it goes too far, but that it comes too
late.” If it weren’t for Johnson’s pardon, Longyear would have disfranchised all
rebels.
943
Eckley particularly felt Congress was merciful:
They have committed a crime that in any other country they could expiate only
with their lives; they ought now to rejoice that by five years of fasting and prayer
they could regain the rights of citizenship…The only objection I have to the
proposition is that it does not go far enough…I would disfranchise them forever.

938
Thayer and Stevens, 2543-2544.

939
Miller, 2510.

940
Representative James A. Garfield, 39
th
Congress, 1
st
Session. Congressional Globe, 2462-2464.

941
Farnsworth, 2539-2540.

942
Schenck, 2471.

943
John W. Longyear, 39
th
Congress, 1
st
Session. Congressional Globe, 2536-2537.

394
They have no right, founded in justice, to participate in the administration of the
government or exercise political power. If they receive protection in their person
and property, are permitted to share in the nation’s bounties, and live in
security…it is far more than the nation owes them.
944

A couple of Republicans actually criticized the structural nature of the third
section. They believed that it left open a few loopholes, through which crafty Southern
states could get around disfranchisement. Beaman pointed out that the ban on voting for
electors to the Electoral College could possibly prove useless if Southern state
legislatures chose to appoint their electors, instead of the voters voting for them.
945
In the
words of John Bingham, “[Rebels] may vote at all the state elections for state officers,
and…may elect the state legislature, which may appoint electors for president…and from
aught in the amendment may appoint rebels as such electors.”
946
In essence, rebels could
still vote in presidential elections, albeit indirectly. Additionally, because Senators were
chosen by state legislatures, the Amendment only prohibited Confederates from voting
for Representatives. “In short,” he said, “the whole machinery of the elections will be in
the hands and under the control of the very men whom you propose to disfranchise.”
947

Congressional Debate: Section 3 in the Senate
On May 29, Republican Jacob Howard of Michigan proposed to change Section 3
to what now appears in the Constitution. The previous Section 3 called for a ban on rebel
voters before 1870. The new Section 3 stated that anyone who had held public office in

944
Eckley, 2534-2536.

945
Beaman, 2537.

946
Bingham, 2451-2453.

947
Beaman, 2537.

395
the US and joined the Confederacy would be ineligible for future office. A short debate
ensued. Hendricks proclaimed that the new Section 3 only applied to those who were in
office during the war and left their posts to join the South. It did not apply to those who
had taken an oath to support the Constitution, fulfilled their term of office, left office, and
then later in their lives joined the Confederacy.
948
Sherman asked Hendricks what would
happen if Robert E. Lee, who had resigned his position in the US Army before joining the
Rebel Army, was elected. Hendricks responded that an oath covered an entire term,
whether or not one served it out or resigned.
949
Van Winkle agreed with Hendricks, and
announced he would vote for the new Section 3 if that was indeed what Howard intended.
It was not. “Where a person has taken a solemn oath to support the Constitution of the
United States there is a fair moral implication that he cannot afterward commit an act
which in its effect would destroy the Constitution,” Howard stated.
950

Doolittle became the first Senator to raise what would be a pair of common
complaints against the new Section 3: it overrode presidential pardons and the
punishment was ex post facto. Doolittle said a pardon restored all civil rights, and
Congress had no right to annul that amnesty.
951
The perennial detractor Cowan said
punishment could only come after someone had been tried. Since possible ex-rebel
officers had not been convicted according to the law, they were entitled to run for

948
Hendricks, 2898.

949
Sherman and Hendricks, 2898

950
Howard, 2898.

951
Doolittle, 2915.

396
office.
952
During the House re-hearing on the Senate’s version of the amendment, Finck
said that men had applied and received pardons “in good faith.” Didn’t that restore their
right to hold office?
953
Hendricks asked, “When pardoned are not these men eligible to
state and federal offices? And do you not propose to strip them of their eligibility?”
954

Senator Morrill explained that a pardon excused a man from the penalty of a crime.
Taking away the ability to serve in office was not a penal code, and therefore was not
included in the presidential pardon.
955

Doolittle also claimed the amendment presented ex post facto problems.
956

Hendricks commented, “This measure is ex post facto; if it were a measure of ordinary
legislation would therefore be unconstitutional.
957
Representative Finck said Congress
tried to do what it could not do by law: pass an ex post facto law. “You propose to inflict
upon these people a punishment not known to the law in existence at the time…[of the]
offense.”
958
Henderson refuted these attacks by explaining that is was not “ordinary
legislation” or a simple “law.” “It is said the law is ex post facto in its character; what if
it is? Have not the people the right, by a Constitutional amendment, to enact such a
law?” Moreover, Henderson said ex post facto laws applied to criminal law, and the

952
Cowan, 2987-2991.

953
Finck, 3145-3146.

954
Hendricks, 2398-2341.

955
Morrill, 2916.

956
Doolittle, 2915.

957
Hendricks, 2398-2341.

958
Finck, 3145-3146.

397
Amendment was civil in character.
959
Willey explained that the new Section 3 could not
be ex post facto because it looked to the future.
960

Reverdy Johnson added one more, practical concern about excluding certain
classes of rebels. He said, “You exclude from the right of holding any office, state, or
federal, a class which will be found to embrace the best men within the limits of these
states.”
961
The problem was two-fold. Of course, it deprived the country of some of the
better Southern (albeit, also ex-Confederate) minds. Henderson seemed not to care about
this problem, “It will be best for the South itself to discard all such men for the future.”
962

Congressman Defrees was a little tougher, “Let the citizens of the states lately in
rebellion know that they must raise up a different class of politicians.”
963
More
concerning for the Republicans, though, as Johnson pointed out, “Do you suppose that
the South will agree to that?”
964
This provision made Southern ratification—which
eventually, would have to come—difficult.
Just like their counterparts in the House, Senate Republicans did not trust rebels.
In the upper house, they directed their comments towards serving in office, rather than
voting. Senator Poland said rebels had no right to complain. Most of them went
untouched, their leaders were spared, and property, voting, & civil rights maintained.

959
Henderson, 3031-3036.

960
Willey 2918-2919.

961
Johnson, 3029-3030.

962
Henderson, 3031-3036.

963
Representative Joseph H. Defrees, 39
th
Congress, 1
st
Session. Congressional Globe, 226-228 (appendix).

964
Johnson, 3029-3030.

398
The only restriction was that on holding office.
965
Yates put it simply, “I am for the
exclusion of traitors and rebels from exercising control and power and authority in this
government.”
966
Willey claimed it would be neither right nor just to allow faithless men
to again be trusted with political power. They had forfeited it.
967
When the Amendment
came back to the House, Defrees noted that it out be an outrage to hand over the
government to those “whose fingers are dipping with the blood of loyal citizens.”
968

Congressional Debate: Sections 1, 2, & 4
The Senate changed the other sections of the bill, but substantively, they remained
pretty much the same, with one exception. The Senate kept the wording of the civil
rights provisions of Section 1, but added a citizenship clause to the front end. It read, “all
persons born in the United States, and subject to the jurisdiction thereof, are citizens of
the United States and of the states wherein they reside.” The wording differed slightly
from Section 1 of the Civil Rights bill, but it set out to accomplish the same goal, to
naturalize blacks. The initial debate in the Senate on the change centered on whether or
not Indians would be included as citizens. After a short while, Saulsbury, of all people,
interrupted the deliberation, “I do not presume that anyone will pretend to disguise the

965
Senator Luke P. Poland, 39
th
Congress, 1
st
Session. Congressional Globe, 2961-2964.

966
Senator Richard Yates, 39
th
Congress, 1
st
Session. Congressional Globe, 3036-3038.

967
Willey, 2918-2919.

968
Defrees, 226-228 (appendix).

399
fact that the object of this first section is simply to declare that negroes shall be citizens
of the United States.”
969
Soon afterwards, that discussion was put to rest.
Hendricks once again provided the Senate’s first Democratic speech in
opposition. One line sums up his point of view: “I do not believe that it is for the good of
either race that they should be brought into close social and political relations.”
970

Rogers gave the House’s most stinging assault:
The first section of this programme of disunion is the most dangerous to
liberty…It destroys the elementary principles of the states; it consolidates
everything into one imperial despotism…This section of the joint resolution is no
more nor less than an attempt to embody in the Constitution of the United States
that outrageous and miserable civil rights bill.
971

Davis once again employed the states rights defense, saying that the individual
states had the reserved sovereignty and right to regulate whom they thought were
residents of their respective states.
972
Shanklin also took up the states rights attack, “The
first section…is to strike down those state rights and invest all power in the general
government.”
973
Samuel Randall hoped that all states would grant civil rights, like his
native Pennsylvania; but nevertheless, that decision was up to the states.
974
One
Representative said that if it was necessary to amend the Constitution to grant civil rights,
then the Civil Rights bill itself was passed without authority, and therefore

969
Saulsbury, 2987.

970
Hendricks, 2398-2341.

971
Rogers, 2538-2539.

972
Davis, 231-243 (appendix).

973
Shanklin, 2500-2501.

974
Randall, 2530-2531.

400
unconstitutional.
975
Raymond must have agreed, for he announced that he had voted
against the Civil Rights bill not because he disagreed substantively, but precisely because
he thought it would take a Constitutional amendment. With that amendment now before
him, he cheerfully could vote his preferences.
976

Bingham countered the states rights claim by saying that no state ever had the
power to deny any freeman equal protection of the laws, or to abridge their privileges and
immunities.
977
Henderson argued that Republicans needed more protections against
Southern state governments and the Black Codes. “Though nominally free, so far as
discriminating legislation could make him so, he was yet a slave,” Henderson said.
978

Poland added that the first section did nothing beyond what the Constitution originally
intended. Unfortunately, “the great extent to which the doctrine of states rights” was
carried out induced Congress to act.
979
Stevens found Democratic opposition
incomprehensible, “I can hardly believe that any person can be found who will not admit
that every one of these provisions is just.”
980
Thayer said just as much.
981
As did Miller,
“It is so just that…no member of this House can seriously object to it.”
982
Schenck

975
Finck, 2461-2462.

976
Raymond, 2501-2503.

977
Bingham, 2451-2453.

978
Henderson, 3031-3036.

979
Poland, 2961.

980
Stevens, 2459.

981
Thayer, 2464-2465.

982
Miller, 2510.

401
believed every citizen was entitled to “the protecting shield of law.”
983
Eliot just said it
was right.
984
Yates believed it would protect from future Supreme Court decisions like
Dred Scott, which declared that blacks were not citizens.
985

Section 2 received some stylistic revisions in the upper house, but the theme
remained the same: states that denied the ballot to black men would see a reduction in
their Representatives and electoral votes. In fact, many Democrats accused the bill of
doing just that. Rogers accused Republicans of depriving states of their Constitutional
right to three-fifths representation. As if he uncovered a giant secret, he announced,
“Yes, gentleman, it is but the negro again appearing in the background.”
986
Hendricks,
too, had exposed the great cover-up, “The intent and effect of that section is to take away
representation in Congress in all the states in which the right of voting is not given to the
negroes.” Hendricks even offered a substitute, which would exclude two-fifths of those
who had previously been slaves. In essence, Hendricks proposed to still count blacks as
three-fifths of a person.
987
“Its true meaning was intended to be difficult to be reached,”
Davis said. But after studying the bill, one could find that it really meant to coerce the
South into letting blacks vote, or face a penalty.
988
Finally, Finck reiterated that the

983
Schenck, 2471.

984
Eliot, 2511-2512.

985
Yates, 3036-3038.

986
Rogers, 2538-2539.

987
Hendricks, 2398-2341.

988
Davis, 231-243 (appendix).

402
purpose was to persuade the South to grant black suffrage. “It seeks to do by indirection
that which gentleman shrink from doing in a direct manner,” he said.
989

It is odd that Democrats took this tact. In no way did the Republican Party try to
hide the fact that they were encouraging Southern states to let black men vote. Perhaps
some of the Moderates did not want that message to come across, but the nature of
Section Two was obvious to all. Broomall stated “It is said that this [section] is intended
to prevent the Southern states from having the representation now based upon their black
and non-voting popoulation…And why not? If the negroes of the South are not to be
counted as a political element in the government of the South in the states, why should
they be counted as a political element in the government of the country in the Union?”
990

A number of Republicans felt the same.
Table 73. Section 2.
Congressman Quote
Stevens “This section allows the states to discriminate among the same class, and
receive proportionate credit in representation.”
991

Thayer “Would it not be a most unprecedented thing that when this population
are not permitted where they reside to enter into the basis of
representation in their own state, we should receive it as an element of
representation here.”
992

Miller “I deem [Section Two] the most important amendment, and is in fact the
cornerstone of the stability of our government…This amendment will
settle the complication in regard to suffrage and representation.”
993

989
Finck, 3145-3146.

990
Broomall, 2498-2500.

991
Stevens, 2459-2460.

992
Thayer, 2464-2465.

993
Miller, 2510.

403
Table 73, Continued.
Raymond “It is now proposed to base representation upon suffrage, upon the
number of voters, instead of upon aggregate population in every state of
the Union. And as I believe that to be essentially just, and likely to
remedy the unequal representation of which complaint is so justly made,
I shall give it my vote.”
994

Eliot “The second section…is, in my judgment, as nearly correct as it can be
without being fully, in full measure, right…No state should have its
basis of national representation enlarged by reason of a portion of
citizens within its borders to which the elective franchise is denied.”
995

Banks “They should be restricted to a fair share of representative power.”
996

Farnsworth “Now, this amendment says to those states this: ‘If the freedmen are so
degraded and ignorant as to be unworthy of enfranchisement; if they are
not capable of governing themselves, but must be held in subjection to
and governed by their late masters, then they are not fit to govern the
country through the votes of others.’…They shall not be used to swell
their rebel masters.”
997

Bingham “The second section of the amendment simply provides for the
equalization of representation among all the states of the Union, North,
South, East, and West. It makes no discrimination. New York has a
colored population of 50,000. By this section, if that great state
discriminates against her colored population as to the elective franchise
(except in cases of crime) she loses to that extent her representative
power in Congress. So also will it be with every other state.”
998

Stewart “If the negro is excluded from suffrage, he shall also be excluded from
the basis of representation.”
999

Poland “If these states refuse to extend the right of suffrage to the colored men
their representation will be confined to the white population.”
1000

Howe “It is no use to talk about 3 million colored people being represented
when not one of them is consulted in the choice of Representatives.”
1001

994
Raymond, 2501-2503.

995
Eliot, 2511.

996
Banks, 2531-2533.

997
Farnsworth, 2539-2540.

998
Bingham, 2451-2453.

999
Stewart, 2798-2803.

1000
Poland, 2961-2964.

1001
Senator Timothy Howe, 39
th
Congress, 1
st
Session. Congressional Globe, 217-226 (appendix).

404
Table 73, Continued.
Sherman “The true basis of representation in the present condition of affairs is the
number of male citizens who under the laws of the states are allowed to
vote…[it] puts the citizen in one state on a footing of precise equality
with a citizen in every other state, which equalizes the political power of
all citizens…If there is any portion of the people of this country who are
unfit to vote for themselves, their neighbors ought not to vote for
them.”
1002

Henderson “It materially changes the Constitution as respects representation in the
lower House of Congress. The same change, of course, will be produced
in the Electoral College…It presents too great an incentive to the states
to extend suffrage to persons who are ignorant and uneducated for the
mere purpose of acquiring power.”
1003

Yates “The grasping desire of the South for office, that old desire to rule and
reign over this government and control its destinies, will at a very early
day hasten the enfranchisement of the loyal blacks.”
1004

Section 4 of the bill changed slightly in the Senate. Originally, Section 4 only
stipulated that the US would not pay back the rebel war debt or compensate for lost
slaves. The Senate affirmed this part, but also added a clause whereby it would pay back
the US war debt. This section met very little debate in Congress. No Congressman could
vote for paying back the rebel war debt. To do so would give some legitimacy to the
Cause and to encourage future rebellion. Only one Representative came out against the
section. Even then, Aaron Harding’s critique was very mild. He did not criticize the
rebel war debt part. He just felt that it should be taken for granted that the US would pay
back what it owed. “The sacred character of the public debt ought never to be called into
question,” he stated.
1005
The only extended argument for Section 4 came from Bingham.

1002
Sherman, 2986.

1003
Henderson, 3031-3036.

1004
Yates, 3036-3038.

1005
Representative Aaron Harding, 39
th
Congress, 1
st
Session. Congressional Globe, 3147-3148.

405
Even then, his defense was quite pithy, “I do not believe that there is a man on this floor
who can answer to his constituency for withholding his vote from that proposition…It is
a declaration in solemn form…that the resources of this great country shall be used in the
future, not to liquidate debts contracted in aid of rebellion, not to pay for emancipated
slaves.”
1006
All other statements took on the form of Bingham’s first sentence. Stevens
said, “I need say nothing of the fourth section, for none dare to object to it who is not
himself a rebel.”
1007
Broomall wanted to put the rebel war debt out of America’s
reach.
1008
Said Yates: “I am for the repudiation of the rebel debt.”
1009
“The fourth
section of the amendment commends itself to all of us without argument. It does not
need to be defended,” said Eliot.
1010

Congressional Debate: Passage
Incredibly strong Republican leadership marks the debate and passage of the
Fourteenth Amendment. It passed the House of Representatives the first time in a
number of days. Of course, that was partly due to Stevens’s insistence that speeches be
kept under half an hour. The Senate took longer, but such is the nature of the more
talkative upper house. Fessenden had originally been slated to manage the debate in the
Senate, but he had become ill and was too sick to take charge on a daily basis. The
responsibility fell to Jacob Howard. The switch from a Moderate to a Radical was not

1006
Bingham, 2451-2453.

1007
Stevens, 2459-2460.

1008
Broomall, 2498-2500.

1009
Yates, 3036-3038.

1010
Eliot, 2511-2512.

406
too important in affecting how the Amendment turned out. They had both been on the
Committee on Reconstruction, and so both had a hand in drawing up the Fourteenth
Amendment. Plus, Fessenden certainly would have agreed to the relatively moderate
changes the Senate made. But it is hard to imagine Fessenden exerting stronger
leadership than Howard. At all points of the Senate debate, Howard seemed firmly in
control of the process.
Of course, it was Howard who had introduced a number the changes to the
Amendment. Though they were not dramatic alterations, they were still done under his
command.
Table 74. Changes to the Original Fourteenth Amendment.
Section Change
1 Added a citizenship clause
2 Stylistic changes
3 Went from banning rebels from voting before 1870 to banning certain rebels
from serving in office
4 Added a guarantee to pay back US debt

Perhaps more important, Howard guided the actual conversation on the
amendment. On June 5, a Senator moved to adjourn, whereby Howard said, “I trust we
shall stay here a little longer today and make some further progress in the discussion…I
hope we shall not adjourn.” The motion to adjourn was defeated.
1011
More poignant,
whenever anyone else offered an amendment to the Amendment, Senate Republicans
seemed to hold their collective breath until Howard gave his input. For example, Senator
Williams offered an amendment to alter the language of Section Two. Howard weighed
in, “[It] does not vary in effect the second section…I hope, therefore, it will be adopted.”

1011
Howard, 2992.

407
After Williams confirmed Howard’s analysis, the Senate passed the changes.
1012
Senator
Van Winkle’s amendment to the amendment did not receive such favorable
commendation. Van Winkle had proposed an oath that would exonerate rebels from all
penalties and disqualifications. Already unlikely to get by Radicals and Moderates,
Howard simply said, “I hope the amendment will not be adopted. I do not see any
propriety in incorporating into the Constitution any provision relating to amnesty or
pardon.” The Senate then rejected the amendment 8-26. When Fessenden offered a
technical modification to Section One, Howard quickly chimed in, “There is no objection
to that.” The change was then agreed to immediately.
Democrats particularly noted Howard’s control towards the very last minutes of
the debate on the Fourteenth Amendment. The presiding officer asked Howard if he
would like the changes to be considered wholesale or section-by-section. Howard
preferred the latter. After the Senate voted on the first section, a frustrated Hendricks
interrupted the proceedings, “The will of the Senate in regard to these amendments has
been so emphatically expressed that I think we may as well take the vote on all of them.”
Howard explained that he still wanted to talk over the second section. Hendricks shot
back, “Then upon the others let us have one vote and be done with them.” Howard’s
changes to the second section then passed, 31-11. James McDougall became just as
annoyed. He tried to postpone the final vote on the Amendment for one more day.
Howard simply said, “I hope it will not be postponed.” Perhaps understanding what was
happening, McDougall ranted, “Those who have the violence and strength of the majority

1012
39
th
Congress, 1
st
Session. Congressional Globe, 2991.

408
can exert it; but I have a right to be heard upon all these questions.” The record notes that
once he finished, “the motion to postpone was not agreed to.”
1013

McDougall also, rightfully, accused Republicans of conspiring in caucus. One
reason Howard might have had such success was that Republicans had caucused before
introduction of the Amendment. For five days, Senate Republicans decided how they
would proceed with the Amendment. Riddleberger writes, “Party discipline was
applied…[but] it is not yet known exactly what happened in these secret meetings.”
Every Senator who attended the caucus ended up voting for the Amendment.
1014
A few
Democrats called Republicans on it. When the Senate first took up the Amendment and
proposed the caucus changes, Saulsbury complained that Republicans had had time to
consider the changes since they had been discussing them over the past five days. For
Saulsbury, though, the presentation of the changes on the Senate floor was the first time
he had heard them. “I rise for the purpose of moving that these amendments, together
with original proposition, be printed, so that we may see them before we are called upon
to vote on them.” Republicans did not dispute his claim.
1015
How could they?
McDougall added:
I must say it is the first time in the history of this Republic that legislative matters
and great Constitutional matters and great Constitutional questions were settled in
party caucus…There is no party organization that has the right, under our system
of government, to so organize themselves that they shall supersede the system

1013
See 39
th
Congress, 1
st
Session. Congressional Globe, 2492, 3040, 3041.

1014
Riddleberger, 150, 155-156.

1015
Saulsbury, 2869.

409
under which our government was established, and when they do it is an act of
tyrannous power.
1016

One episode in particular shows how commanding the caucus proved to be.
Senator Doolittle had offered an amendment to the third section, which stipulated that
apportionment would be determined according to the number of 21+ males who were
qualified to vote for the lower house of the state legislatures, including those who were
disqualified by participating in the war. In essence, Doolittle’s proposal looked to
increase Southern representation in two ways. First, rebels would count. Secondly,
Southern states could increase their Congressional representation by allowing blacks to
vote for the lower house of the state legislature. It was a compromise proposal, designed
to allow blacks some political power while still ensuring that whites would choose
federal officers from the South. John Sherman, one of the leading Moderates, said that
Doolittle’s modification probably represented the plan best suited to “heal the
difficulties” of the nation. Alas, Sherman said:
I feel bound to vote against this amendment…A majority of those who will
support the propositions on which we are to stand believe that the measure in the
shape in which it is before us is the wisest, and I am bound on that question to
defer my own opinion to that majority who differ from me…While I do not and
cannot surrender my individual opinion on this subject, I shall vote against the
amendment [Doolittle’s]…I choose to stand by that which has been agreed upon
by those who are expected to vote for some amendments to the Constitution.
1017

In essence, Sherman had admitted that he thought other plans were better, and that
he would prefer to vote for those other plans. In addition, he felt he could not vote for
them because he—and other Republicans—had agreed on a pre-arranged set of

1016
McDougall, 3041.

1017
Sherman, 2986.

410
propositions. Hendricks jumped all over Sherman, “I will never in my life cast a vote
upon an important legislative measure because any body of men said I should…That is
the position that the Senator from Ohio [Sherman] admits himself to occupy…He
subordinates his judgment of the will of a majority of his party friends in a caucus.”
1018

Sherman said he did not seek Hendricks’s approval. Later on, when the House
considered the Senate bill and Rogers ranted against the caucus; he specifically
implicated Sherman. Rogers asked, “What security of safety is there…when one of the
chief spokesman of the dominant party…votes against his deliberate judgment and the
convictions of his conscience, simply because a majority…have assembled in secret
conclave and decided that he shall so vote?”
1019

Sherman was right: he did not need Hendricks’s approval. Still, the damage had
been done. No doubt Sherman’s comments accurately described the Moderate’s take on
Reconstruction and the Fourteenth Amendment. He probably should have kept those
thoughts to himself, though, because the comments came off as, probably truthfully,
Republican collusion.
Table 75. Vote on the Fourteenth Amendment.
Yeas Nays Total
Republicans 32 4 36
Democrats 0 6 6
UU/U 1 1 2
Total 33 11 44

Regardless of whether there was foul play or not, the Senate passed the
Amendment 33-11. Because they modified the original proposal, their version went to

1018
Hendricks, 2992-2993.

1019
Rogers, 229-231, (appendix).

411
the House of Representatives, where Stevens once more controlled the process. He
explained that Republican members of the joint committee (including himself) had
unanimously agreed that the House should adopt the Senate’s version of the Amendment.
He then told dissenters that they should limit their speeches to under 15 minutes.
Democrats asked if they could an hour total, and to divide it as they pleased. Stevens
stuck with his 15-minute plan. Somewhat of a joker, Eldredge noted, “I suppose that it is
not required of us on this side, inasmuch as we are impotent to object, that we shall
consent to the gentleman on the other side of the House dividing the Union just exactly as
they see fit.”
1020
Although the comment drew a round of laughter, it demonstrated that
both Democrats and Republicans recognized who was in charge on the House floor when
it came to the Fourteenth Amendment.
In a speech that must have lasted more than 15 minutes, Andrew Rogers took aim
at the Republican caucus. Rogers explained that his position was a difficult one. He had
“to make an argument against a measure which has already been arranged by a secret
party caucus who have determined to put it through.” Even before the Senate caucus had
formed, Rogers charged Republicans with forming a “secret caucus” to form the
Committee on Reconstruction. That caucus then directed Republicans to vote for the
Fourteenth Amendment the first time it reached the House. “They party lash was again
applied,” Rogers said, “and the previous question used to gag debate, and it passed this
House by the overwhelming vote of the entire Radical and so-called Conservative [i.e.,
Moderate] element.” It then went to the Senate, where only a bare majority of Senators

1020
Eldredge, 3144.

412
supported the House’s version. Rogers explained the caucus’s response, “The committee
became nervous, and determined that the party lash should be more thoroughly
applied…It again sat and finally hatched a new progeny…The Radicals saw that a failure
to agree upon some proposition would be death to their party,” and so they passed it in
the Senate. At which point, “it now became necessary to manipulate the House. It had
given its views upon the proposition of the committee. But the forcing process begun.
The House is ordered to cringe and cower before the awful power of the honorable
gentleman from Pennsylvania [Stevens].” The Congressman castigated Republicans,
telling them they should vote their conscience, not just the party line. He said it never
would pass the two-thirds requirement if all his colleagues had honestly approached the
proposal. Finally, he said, the Amendment “never will be ratified by three quarters of the
states. None of you expect they will.”
1021

Stevens did not respond to Rogers’s accusations, nor did he really seem to care.
He told the House that he believed they should pass the Senate’s version of the
Amendment. He went through the individual sections. Calling the citizenship clause an
“excellent amendment,” he said it would settle conflicts between the states and the feds.
The second section, Stevens mentioned, had not been changed much. He summarized the
main alteration, “The third section has been wholly changed by substituting the
ineligibility of certain high offenders for the disfranchisement of all rebels until 1870.
This I cannot look upon as an improvement.” Stevens then asked Republicans to vote for
the Amendment, even if it was not perfect in their minds. It passed 120-32. After

1021
Rogers, 229-231 (appendix).

413
passage, ten Representatives made excuses for some of their fellow absent colleagues.
They indicated how their associates would have voted had they been present.
Afterwards, Eldredge said, “I desire to state that if Messrs. Brooks and Voorhees had not
been expelled, they would have voted against this proposition.” After the laughter died
down, Schenck followed up with, “And I desire to say that if Jeff Davis were here, he
would probably also have voted the same way.”
1022
By this time, trying to mount a
serious opposition to the Fourteenth Amendment, and to the organized Republican
majority, was literally a laughing matter.
Congressional Debate: Recurring Themes
Throughout the debate a number of recurring themes stood out amongst the
Congressmen’s comments. On the Democratic side, racism and support for Johnson
emerged as popular talking points. Most of the racist comments took the form of whites
being more suited to lead. Rogers’s comment that “this government was made for white
men” was fairly typical.
1023
McDougall said, “The Caucasian race were made for
governors, and…negroes are only fit to be a subject race.”
1024
Hendricks disapproved of
the first section because he believed only whites were fit for citizenship.
1025
Davis said
there existed a natural and irrepressible antagonism between the two races, and that one
or the other would have mastery. “The God of nature has given it to the white man,” he

1022
Schenck, 3149.

1023
Rogers, 2538-2539.

1024
McDougall, 3031.

1025
Hendricks, 2938-2941.

414
claimed, “and he has asserted it from the beginning and will to the end.”
1026
A couple
episodes particularly stand out. Shanklin believed that the Freedmen’s Bureau had led to
things like blacks being allowed into Congressional galleries. “Crowds of these negroes
have hung over us like a black and threatening cloud,” he seethed.
1027
Finally, the usually
fun-loving Eldredge had had enough after the House passed the Amendment the first
time. When the galleries erupted into cheers, Eldredge demanded that the floor and the
galleries be brought to order. The Speaker recognized his claim and instructed the
galleries to quiet down. Seemingly unprovoked at that point, Eldredge spewed, “I do not
want our proceedings to be interrupted by the ‘niggerheads in the galleries.’” The record
notes that there were “hisses in the galleries.”
1028

Just like the debates on the Freedmen’s Bureau and Civil Rights bills, a number of
Democrats took the opportunity to offer their public endorsement of the president. Some
praised his past actions, such as vetoing the two bills or devising what they considered an
effective reconstruction plan. Hendricks commented that Johnson twice fought off the
temptation to sign the patronage-loaded Bureau bill.
1029
One Democrat called Johnson’s
policy “wise and just.”
1030
Another said it was “simple and effect, just and equitable.”
1031

Finck wrongly predicted, “I trust, sir, these people will rally with a united and patriotic

1026
Davis, 231-243, (appendix).

1027
Shanklin, 2500-2501.

1028
39
th
Congress, 1
st
Session. Congressional Globe, 2545.

1029
Hendricks, 2398-2341.

1030
Shanklin, 2500-2501.

1031
Randall, 2530-2531.

415
purpose around the wise and just policy of Andrew Johnson.”
1032
Others applauded
Andrew Johnson, the man, for his virtue and character. Rogers said he was “a patriot and
a statesman,” whose only wished to restore the Union and ensure that all states gained
due representation.
1033
Randall claimed he was “guided by wisdom and prudence.”
1034

“By the providence of God…” Davis thankfully proclaimed, “he has been called to the
presidency…He seems to be the man for the occasion; and his ability, resources, courage,
and patriotism have developed to meet its great demand.”
1035

The overwhelming, and inter-related, common themes of Republican speakers
were that they believed the bill could be better, and that they supported—and were
disappointed the bill didn’t include—black suffrage. In terms of the former, many
Republicans seemed fairly dissatisfied with the bill because it did not go far enough in
protecting black rights or punishing the South. In short, some members thought it was
not radical enough. Often, they followed it up with a pragmatic comment about taking
what they could get. These kinds of statements repeated themselves time and again
throughout the debate.
Table 76. Radical pragmatism.
Congressman Quote
Stevens “I will take all I can get in the cause of humanity and leave it to be
perfected by better men in better times.”
1036

Schenck “I am willing…when I cannot get all I wish to take what I can get.”
1037

1032
Finck, 2461-2462; see also, Davis, 231-243, (appendix).

1033
Rogers, 2538-2539.

1034
Randall, 2530-2531.

1035
Davis, 231-243, (appendix).

1036
Stevens, 2459.

416
Table 76, Continued.
Kelley “The report of the committee does not meet my expectations…If
however, those with whom I am sent to cooperate in this House deem
this measure wise and excellent, I will vote for it.”
1038

Broomall “I want every man to come to the conclusion to which I have come, to
vote, if not for that which he wants, for the best that he can get…It is not
what I wanted. How far short of it!”
1039

Spalding “It does not, in all respects, come up to the standard which my imperfect
judgment had erected, but I have lived long enough to know that very
few things of a public character can be accomplished without some
abnegation of one’s own notions of propriety, and a respectful deference
to the opinion of others.”
1040

Eliot “This amendment is not, as I believe, all that ought to be offered…but it
is right as far as it goes, and upon careful examination I find contained in
it no compromised principle. That being settled, I am willing to defer to
the opinions of other gentlemen, and be content with the best that can be
obtained.”
1041

Longyear “The amendments and bills reports by the committee on reconstruction
fall far short of the expectations of the people, and I may say are short of
what I may have desired…But so far as the report goes, it is in the right
direction, and I will not reject it for the sole reason that it does not go far
enough.”
1042

Beaman “To say that I am not entirely satisfied with the plan for the
reconstruction of the rebel states…is probably to utter the sentiment of
nearly every member of the House…Perhaps it is as nearly satisfactory
as any system that could have been agreed on with any well-founded
hope of adoption.”
1043

Farnsworth “It is not all I hope may yet be adopted and ratified…But I do not think
it is becoming in a legislator to oppose some good because the measure
is not all he wants.”
1044

1037
Schenck, 2471.

1038
Kelley, 2467-2469.

1039
Broomall, 2498-2500.

1040
Spalding, 2509-2510.

1041
Eliot, 2511-2512.

1042
Longyear, 2536-2537.

1043
Beaman, 2537.

1044
Farnsworth, 2539-2540.

417
Table 76, Continued.
Stewart “I will vote for the plan of the majority so long as it is a better plan that
that of the president…While it is not the plan that I would have adopted,
as is well known, still it is the best that I can get, and contains many
excellent provisions.”
1045

Howe “I shall vote for it regretfully, because it does not meet the emergency as
I hoped the emergency would be met; but I shall not vote for it
reluctantly, because it seems to me just now to be the only way in which
the emergency can be met at all.”
1046

Yates “As I cannot get the position for which I have so earnestly contended, I
will sit quietly by, as I have sat quietly by, and take the next best
proposition that I can.”
1047

Defrees “I consider the propositions under consideration very lenient. They do
not come up fully to my idea of justice in the premises. I would add to
the disqualification for office disfranchisement forever, so far as we
have the power, and the confiscation of all their estates, and place it
beyond the executive clemency to restore any of them to citizenship or
to their property. They should be made to feel that treason is
‘odious.’”
1048

Democrats certainly provided the main opposition to the Amendment. This holds
true for the second section, where Democrats believed that Republicans had concocted a
roundabout way to grant black voting rights. Radicals actually agreed with Democrats
that Section 2 could be better. However, while Democrats wanted it erased, Radical
Republicans wanted it to grant black suffrage outright. Black suffrage had previously
come up in a number of other bills, including the one granting Washington, D.C. blacks
the ballot. But this was the first time when almost every single Radical who spoke used
the floor to announce their support for black suffrage.

1045
Stewart, 2798-2903, 2964.

1046
Howe, 217-226, (appendix).

1047
Yates, 3036-3038.

1048
Defrees, 226-228.

418
Table 77. Radical lament on lack of black suffrage.
Congressman Quote
Schenck “I regret more than I shall be able to tell this House that we have not
found the situation of affairs in this country such, and the public virtue
such that we might come out on the plain, unanswerable proposition that
every adult intelligent citizen of the United States, unconvicted of crime,
shall enjoy the right of suffrage.”
1049

Kelley “Could I have controlled the report of the committee of 15, it would have
proposed to give the right of suffrage to every loyal man in the
country.”
1050

Boutwell “The proposition in the matter of suffrage falls short of what I desire.”
1051

Eliot “The time will come, I do not doubt, when in this Union of ours all men
will stand equal before the law in their political and civil rights.”
1052

Banks “No proposition meets my entire approval that does not propose a radical
change in the basis of political society in these states…There are two
methods by which the change I propose can be made: one by extending
the elective franchise to the negro; [the other by restricting rebel
votes].”
1053

Beaman “I did hope to see the rights of the freedmen completely established. I
did believe that we should not ignore the services of the brave colored
men…[who] are fit to be entrusted with the ballot.”
1054

Farnsworth “I am not without hope that Congress and the people of the several states
may yet…give every citizen, white or black…the ballot.”
1055

Stewart “The negro must have the ballot or have no friends…Give him the ballot
and he will have plenty of white friends, for the people of the United
States love votes and office more than they hate negroes…The simple
fact is, give the people the ballot and the rulers are their servants,
withhold it and the people exist at the will and sufferance of their
rulers.”
1056

1049
Schenck, 2471.

1050
Kelley, 2467-2469.

1051
Boutwell, 2508-2509.

1052
Eliot, 2511-2512.

1053
Banks, 2531-2533.

1054
Beaman, 2537.

1055
Farnsworth, 2539-2540.

1056
Stewart, 2798-2803.

419
Table 77, Continued.
Poland “I should be much better satisfied if the right of suffrage had been given
at once to the more intelligent of them and such as had served in our
Army.”
1057

Yates “It is to me the strangest thing in the world that while we deny to 4
million loyal men…While we deny to them the rights of American
citizens, we are prepared to extend all privileges to the men who have
tried to destroy and to overthrow the government.”
1058

Conclusion
That Radicals found the bill imperfect should come as no surprise. This was not a
Radical measure. In fact, even if black suffrage had replaced Section Two, it still would
not have been perfect to the Radicals. As Stevens said, “In my judgment, we shall not
approach the measure of justice until we have given every adult freedman a homestead on
the land where he was born and toiled and suffered. Forty acres of land and a hut would
be more valuable to him than the immediate right to vote.”
1059
The bill re-affirmed and
Constitutionalized the Civil Rights bill—a Moderate bill. Instead of outright declaring
that blacks could vote, it hatched a scheme whereby Southern states still had the ability to
deny blacks the ballot, so long as they were willing to pay the price. It did not strip
rebels of the franchise. And everyone, including Conservatives and even most
Democrats, could agree to the war debt section. When the Fourteenth Amendment came
to Congress, the Moderates still controlled the Radical/Moderate coalition. At the very
least, on a left-to-right scale, the Moderates controlled the median vote in both Houses.
The Fourteenth Amendment reflected that reality.

1057
Poland, 2961-2964.

1058
Yates, 3036-3038.

1059
Stevens, 2459-2460.

420
Contemporary Congressmen recognized their situation. Poland stated, “Great
differences have existed among ourselves; many opinions have had to yield to enable us
to agree upon a plan.”
1060
The Democrat Hendricks might have summed up the situation
best: “Upon discussion it was found that probably no one of the propositions, nor any
proposed modification thereof, could receive the required vote.”
1061
Meanwhile, Senator
Yates discussed not only the coalitional circumstances, but also the electoral
implications:
“While gentlemen upon the other side of the Chamber are opposed to these
measures as too radical, I am opposed to them, so far as I might present points of
opposition, because they are not radical enough. At all events, therefore, we have
the medium between extremes; we have moderation…I am glad that I can go
before my constituents and say that in the whole history of the world there never
were such terms of moderation and of magnanimity proposed to a vindictive foe
as by these resolutions which have been reported by the committee of 15.
1062

Always the pragmatist, at the very close of the debate, Stevens said he would
accept the flawed Amendment because he “live[d] among men and not among angels;
among men as intelligent, as determined, and as independent as myself, who, not
agreeing with me, do not choose to yield their opinions to mine. Mutual concession,
therefore, is our only resort, or mutual hostilities.”
1063

Perhaps more than the actual provisions themselves, the Radical disappointment
displays the moderate nature of the Fourteenth Amendment. In fact, it might not have
even been a split from Presidential Reconstruction. Senator Howe mentioned, “It has

1060
Poland, 2961-2964.

1061
Hendricks, 2938-2941.

1062
Yates, 3036-3038.

1063
Stevens, 3138.

421
seemed good to the Committee of 15 not to disturb unnecessarily what the president had
done, but to take his handiwork and to work it into some complete plan of
reconstruction.”
1064
This is why I do not believe that Johnson had completely lost the
Moderates yet. If he had come out in support of the Amendment, he might yet have
captured the Moderates, and built a national Moderate/Conservative coalition. Senator
Poland believed that even though Republicans and Johnson disagreed, the president
would “feel it to be his patriotic duty to acquiesce in the plan proposed.” Not only did
the Senator hope that Johnson would just acquiesce, but that he would lend “his powerful
influences and support to procure their adoption.”
1065

Congressional Moderates still held out hope for Johnson. Thus, while many
historians view the Freedmen’s Bureau clash, and especially, the Civil Rights veto as the
turning points in the post-bellum Republican Party, I believe the feelings expressed
during the Congressional debate point towards the fallout of the Fourteenth Amendment
as the decisive moment. Going into the debate on the Amendment, Moderates wanted to
unite with Johnson. The same holds true coming out of the debate. It was Johnson’s
reaction to the Amendment that forced the Moderates to cut ties with the president.
Interestingly, during the debate on the Amendment, Congressman George Boutwell
predicted that the Radical Republicans were “soon to be the controlling and entire force

1064
Howe, 217-226, (appendix).

1065
Poland, 2961-2964.

422
of that party.”
1066
Though he probably had no sense of how it would go down,
Boutwell’s prediction proved exceedingly insightful.
Johnson Responds to the Fourteenth Amendment
Moderate Republicans believed the passage of the Fourteenth Amendment would
serve as a warning shot to the White House. They did not mean for it to be a devastating
blow. In fact, they believed Johnson would come out in favor of the Amendment, and
help guide its ratification. Instead, Johnson issued a curious message. Essentially
declaring his opposition to the Amendment, he said he doubted whether it was in line
with what the people wanted. He noted that his official duty required him to instruct the
Secretary of State to deliver the Amendment to the states for ratification. But he wanted
everyone to know that he only presented the Amendment to the states because of his
Constitutional obligation. He did not want the delivery itself to be interpreted as though
he supported the Fourteenth Amendment. He said it is “to be considered as purely a
ministerial and in no sense whatever committing the Executive to an approval or a
recommendation of the Amendment.”
1067

Hard to believe, but Johnson still had not completely alienated himself from the
Moderate camp. Despite vetoing major Congressional bills and repudiating the latest
attempt to improve Presidential Reconstruction, Johnson had yet to isolate himself from
the middle of the Republican Party. The evidence behind this claim lies in the
proceedings of the readmission of Tennessee. The Volunteer State became the first

1066
Boutwell, 2508-2509.

1067
Andrew Johnson, “Special Message” The American Presidency Project 22 June 1866.

423
former Confederate state to ratify the Fourteenth Amendment, which, in the minds of a
majority in Congress qualified her to come back into the Union and seat delegates in the
house and Senate. As it turns out, Tennessee’s ratification of the Amendment had come
through somewhat dubious circumstances. The governor had called the legislature for a
special session to ratify the Amendment. When they convened, though, the group was
two short of a quorum, so the governor called on the federal army to seize two absent
legislators. The army kept the two under guard in a committee room of the state capitol
while the rest of the legislature prepared to ratify the Amendment. The two politicians
received a writ of habeas corpus from a judge, who ordered their release. The order was
ignored, a quorum was declared present, and the legislature ratified the Amendment.
1068

Almost immediately after Tennessee ratified the Amendment, Congress admitted
her back into the Union. They took action so quick that they began the very day
Tennessee ratified it—a striking feat considering the communications difficulties. Within
four days of ratification, the president signed a bill granting Tennessee representation in
the US Congress.
Table 78. Tennessee readmission.
Date Event
July 19, 1866 Tennessee ratified Fourteenth Amendment
July 19 Trumbull announces to Senate that Tennessee has ratified the
Amendment; he proposes to schedule a readmission bill
July 20 House takes up a readmission bill. They pass it that day.
July 20 Senate takes up a readmission bill
July 21 Senate passes its own readmission bill.
July 23 House passes Senate’s readmission bill.
July 24 President signs the bill.

1068
Donhardt, 95; see also, Johnson, 3990.

424
During the debate, it was clear that Moderates, Conservatives, and Democrats
approved of admitting Tennessee back into the Union. Both the House and the Senate
bills were directed by Moderates—John Bingham and Lyman Trumbull, respectively.
Throughout the conversation, non-Radicals implored Congress to admit Tennessee if
only so that more states could be brought back in and restoration of the Union could
speed along. They believed that Tennessee had done everything she needed to do to
come back in: she had drafted a republican state constitution and ratified the Fourteenth
Amendment, which symbolized the Moderate program (i.e., civil rights, how to deal with
representation, ineligibility of certain rebels for office, and repudiation of the rebel war
debt). Bingham actually became a bit upset towards his previous allies, the Radicals, “I
respectfully demand to know upon what principle you can deny the people of Tennessee
representation on this floor, without denying the vital spirit of our free institutions, the
right of the people to self-government.” He launched into a speech that one might have
mistaken for Democratic orthodoxy.
If one didn’t know better, one would think that Bingham had transferred his party
membership, or at the very least, had converted to a Republican Conservative. Compare
his comments with that of William Finck, one of the most outspoken Democrats of the
39
th
Congress.

425
Table 79. Bingham versus Finck.
Bingham Finck
“I say, again, these states must be equal
before the law. They must each have equal
representation in the Senate, and they must
each be represented according to their
whole representative population in this
House.”
1069

“The great overshadowing question is the
right of Tennessee to be represented here. I
believe she is so entitled. I want that state
and all the states to enjoy their
Constitutional right of representation.”
1070

Perhaps the selling points for Democrats and Republicans were different.
Democrats probably wanted Tennessee back in because a quick restoration was the best
way to rebuild the country. The terms were likely not ideal for Democrats, but they were,
at worst, acceptable. Reverdy Johnson eagerly acknowledged, “I am very anxious to
have the state of Tennessee admitted to representation.”
1071
Meanwhile, Moderate
Republicans thought the readmission plan satisfactory because it forced states to endorse
the Fourteenth Amendment, the crux of their reconstruction agenda. During the debate,
Bingham asserted that the most important part of Congressional Reconstruction was
adding civil rights to Presidential Reconstruction. Ratification of the Fourteenth
Amendment by the Southern states themselves ensured this.
1072
Sherman noted that
Tennessee had voted in favor of the Thirteenth and Fourteenth Amendment. “She is
entitled to representation,” the Moderate concluded.
1073
What more was needed?

1069
Bingham, 3978-3979.

1070
Finck, 3978.

1071
Johnson, 3990.

1072
Bingham, 3978-3979.

1073
Sherman, 3989.

426
The House manager understood what more was wanted. Scornfully, Bingham
noted, “It is this, and only this, that the loyal white people of the state of Tennessee have
not yet extended the elective franchise to the black population.”
1074
True to form, a
number of Radicals confirmed Bingham’s observation. Perhaps the most willing to
compromise, Congressman Higby said he might vote for re-admission if Tennessee
would just allow black soldiers to vote.
1075
Boutwell called the bill “dangerous,” and
argued that the Thirteenth Amendment had changed the rules regarding what constituted
a republican government. “Wherever a man and his posterity are forever
disenfranchised,” he said, “…that government is not republican in form.”
1076
Referring
to himself, Yates said, “Some gentlemen on this floor believe that no constitution is
republican in form which excludes from suffrage all of a particular class of individuals.”
Cowan interrupted Yates, “Say who they are.” “Negroes,” Yates answered.
1077
In one
memorable exchange, Senators Brown and Trumbull articulated the Radical and
Moderate positions:
TRUMBULL: There is nothing in the preamble [of the readmission bill] about
disfranchising the whole colored population.
BROWN: But there is an allegation that the constitution of the state, as it
now stands, is “republican in form.”
TRUMBULL: Yes, sir.
BROWN: I do not believe in that doctrine.
1078

1074
Bingham, 3978-3979.

1075
Representative William Higby, 39
th
Congress, 1
st
Session. Congressional Globe, 3978.

1076
Boutwell, 3976-3977.

1077
Yates, 3998.

1078
Trumbull and Brown, 3998.

427
Sumner later jumped in, “He declares, and calls upon us to declare that the
constitution adopted by Tennessee is republican in form. A constitution which
disfranchises more than one quarter of its population, republican in form!”
1079
Right
before the Senate voted on the measure, Brown gave his closing thoughts, which
provided the philosophical basis of Radicalism:
I would never, by any vote of mine, consent to restore those states to their former
federal relations until they should first take impartial suffrage one of the
muniments of their constitutions…Were I the oracle of your Republican Union
organization, I would plead with you, my friends, not to make this humiliating
surrender of the very life principle of your party. Republicanism means nothing if
it means not impartial, universal suffrage.
1080

More than any other document, Brown’s closing speech demonstrates the
ideological split and late summer power struggle between Radicals and Moderates.
Moderates wanted a quickly re-integrated South. Radicals wanted a dramatically
revolutionized South. Given the differences, the bind holding the two groups together
was loose. So why did so many Republicans—of all stripes—vote for the bill?
Table 80. Senate vote on Tennessee readmission.
Yeas Nays Total
Republicans 23 1 24
Democrats 2 2 4
UU/U 3 1 4
Total 28 4 32

Table 81. House vote on Tennessee readmission.
Yeas Nays Total
Republicans 91 12 103
Democrats 26 0 26
UU/U 8 0 8
Total 125 12 137

1079
Sumner, 3998.
1080
Brown, 4007.

428
I’m not sure the Moderates understood the political situation. They did not have
the numbers to dominate Congress themselves. They had to ally with either the Radicals
or the Conservatives/Democrats. In passing the Fourteenth Amendment, they joined
forces with the former; in re-admitting Tennessee, they partnered with the latter. At best,
the Moderates believed they could straddle the fence by swinging left on one issue and
right on another. If that were the case, then they had to be open to joining forces with the
president, so long as the president accepted basic civil rights and a modicum of
institutional re-organization in the South.
On the other hand, the Radicals fully comprehended the nature of the American
political landscape. It’s probably why they voted for the bill. Some of them might have
either converted to the Moderate side, or maybe some of them understood that they had to
work with Moderates or risk losing them to Conservatives. Still, it is hard to believe that
they would essentially vote against forcing the South to accept black suffrage. It was the
central tenet of Radicalism. Perhaps the insights of Sherman and Henderson can explain
what happened. During the debate, Sherman acknowledged the Radical position, saying
that men like Sumner and Brown could not vote for the bill until Tennessee allowed
blacks to vote. He took stock of the situation, “We come, then, to that bare and simple
proposition, that we must require these states to allow colored person to vote.” Then he
astutely asked, “Are we prepared to make that issue?”
1081
In effect, Sherman had asked
Radicals whether or not they were ready to make black suffrage an electoral issue. With

1081
Sherman, 3989.

429
so much uncertainty in the electorate surrounding the issue, they were probably wise not
to make “make that issue” yet.
There was also uncertainty coming out of the White House. In a very interesting
exchange, Sherman and Trumbull—perhaps the two leading Moderates in 1866—
bickered over what Andrew Johnson would do with the bill. Sherman objected to the
preamble because it had been framed so “that the president cannot approve it, and the
result will be another veto and further delay.” Trumbull responded, “I do not see how he
can…Can it be that the Executive can have any objection to our declaring that which he
has alleged to be a fact all the time?” Trumbull might have forgotten the Freedmen’s
Bureau and Civil Rights bill, but Sherman didn’t, “Why reassert for the third time a
proposition which the president dissents from, merely to form the pretext of a veto?”
1082

It is possible Trumbull was trying to provoke a veto, upon which Moderates could
campaign on. But more likely, this was an open conversation between two close allies
who honestly disagreed with each other. Indeed, anticipating Johnson’s reactions to
Congressional action had become a tricky enterprise, not only for Moderates, but also
Radicals. If Radicals were to vote against the bill and Johnson did veto it, they would
find themselves on the same side as the president—a position they certainly did not want,
either ideologically or politically. Henderson, a reliable Moderate, recognized the
difficulty, “Suppose that the president vetoes this proposition and it is sent back to
us…Will the Senator from Massachusetts [Sumner] vote for it, or will he sustain the

1082
Sherman, 3987-3988.

430
president’s veto?”
1083
Perhaps this political reality addresses why so many Radicals
voted for the readmission of Tennessee without black suffrage.
Radicals probably would have been better off had Johnson vetoed the bill. At
least then they could prove that they stood in opposition to Johnson; and that even when
they compromised on things like black suffrage, Johnson still proved difficult.
Unfortunately for Radicals, the president signed the bill. Never one to pass up an
opportunity to speak, Johnson included a signing message. In it, he provided by now
what was a predictable Johnsonian response—a completely unpredictable viewpoint.
Johnson said that the preamble of the bill, which had declared that Congress had the right
to admit states back into the Union under Congressional terms, was not a law. It was just
a statement that had no legal force. Therefore, he had no problem with. The actual legal
portion of the bill simply stated that Tennessee was “restored to her former proper,
practical relations to the Union,” and that she could seat delegates in both chambers of
Congress. Of course, Johnson had no problem with that section. In fact, he had already
restored Southern states to their previous status. “The political existence of the states and
their relations to the federal government had been fully and completely recognized and
acknowledged by the executive department of the government.” He brazenly proclaimed,
“The completion of the work of restoration, which had progressed so favorably, was
submitted to Congress.” Then he complained that it had taken Congress eight months
just to admit one state. To cap it off, he declared that he had signed the bill because he
wanted to speed along reconstruction. When read to the lower chamber, half the House

1083
Henderson, page 3991.

431
laughed; the other side applauded. In no way though was Johnson’s approval “to be
construed as an acknowledgement of the right of Congress to pass laws preliminary to the
admission of duly qualified representatives from any of the states.” This time, there was
only “great laughter.” The message continued to say that it also did not commit the
president to the preamble. Then, renewed laughter. Finally, Johnson said he wasn’t even
sure Tennessee had even ratified the Fourteenth Amendment. Republicans could only
snicker once more.
1084

Altogether, the signature message was typical Johnson. He spoke when there was
no need to. If he had vetoed the bill, he would have placed Radicals in a tight spot:
having to explain siding with the Conservative President and giving up so easily on black
suffrage. Alternatively, he could have silently signed it. Instead, he provided a silly
defense for his approval, one that allowed Radicals to ridicule Johnson. In fact, right
after the House finished reading the message, Stevens joked (and drew one more round of
laughs) that the bill had become a law “by the entire and cordial approval of the
president.”
1085
The bill had presented an opportunity to split the Radicals and the
Moderates. Instead, the Radicals played ball and temporarily set the readmission and
black suffrage issues aside. Fortunately for them, the resolution had come at the end of
the Congressional session. No other Southern state had passed the Moderate test for
readmission. That is, none of them save Tennessee had ratified the Fourteenth
Amendment. In fact, many of the states had demonstrated great stubbornness towards the

1084
Andrew Johnson, “Special Message” The American Presidency Project 24 July 1866; 39
th
Congress, 1
st

Session. Congressional Globe, 4103.

1085
Stevens, 4103.

432
Amendment. In the months that followed, all ten remaining Confederate states rejected
it. Not a single legislator voted for it in Florida, Mississippi, and Louisiana. Arkansas
tallied three votes. North Carolina came the closest, with a 10-95 vote!
1086
The
readmission of Tennessee should have served as a cue to Johnson, Conservatives, and the
South that the Moderates were still willing to work with Presidential Reconstruction.
Congressional Conservatives seemed to catch on. But the South just became more
obstinate. Meanwhile, Johnson decided it was time to make his formal break from the
Republican Party.
National Union Convention
After the Tennessee bill, Johnson called for his supporters—Democrats,
Republicans, Northerners, and Southerners—to meet in Philadelphia to devise a strategy
to win the 1866 midterm elections. The National Union Convention kicked off August
14, 1866, and lasted three days. Foner writes, “Here, at last, was the long-anticipated
effort at political realignment.”
1087
The plan was to create a new political party that
united those who had been opposed to Radicalism. Mistakenly, Johnson assumed that
meant everyone who was not a Radical. Undoubtedly, this included some heavy hitters.
Horace Greeley was there. So was Montgomery Blair. Senators James Doolittle and
Reverdy Johnson attended; they were leaders of the Conservative Republicans and
Democrats, respectively. Many sitting Democratic and Republican Congressmen
attended. A number of influential non-Radicals decided not to attend, including

1086
Riddleberger, 161.

1087
Foner, 260.

433
Trumbull and Sherman. Craven writes, “When the Union convention assembled, it was
notable for those who were not there as it was for those present.”
1088
This is
questionable, but only because some of the attendees were truly infamous. Fernando
Wood came to head Tammany Hall, the New York City political machine. During his
wartime tenure as mayor of the city, he suggested that the city secede from the Union.
Clement Vallandigham also had been voted as a delegate to the National Union
Convention. A onetime Congressman, Vallandigham is remembered mostly for speaking
out against Lincoln, whereby he was thrown in jail. After appealing for a writ of habeas
corpus, Lincoln eventually banished him to the South. By the end, they had created a stir,
roused up some support, and produced an “Address” and a “Declaration of Principles,”
combining to form a platform of sorts. But they had not created a new political party.
Attendees soon learned that such an assorted group created the problem of coming
up with an electoral strategy and a comprehensive ideology. In terms of the strategy, no
one trusted anyone. Conservative Republicans wanted to attract Moderates while
Democrats wanted to go after the Democratic base. Southerners were also very
suspicious of joining forces with elements of the Republican Party. Regarding ideology,
Conservatives found that, outside of opposition to Radicalism, they did not have much in
common with Northern Democrats.
1089

The Address did state some principles. It begged the listener to remember that the
war was over and the nation at peace, a pretext for laying down arms (i.e., no military

1088
Craven, 184.

1089
Castel, 77-85.

434
occupation) and healing wounds as quickly as possible. It declared the “absolute
supremacy of the national government” but stated that the government had acquired “no
new power, no enlarged jurisdiction, no rights…which it did not possess before the
rebellion.” In fact, “the Constitution of the United States is today precisely as it was
before the war.” The feds had no right to abrogate state governments, institutions, and
laws. Moreover, they could not employ the “rights of war [and] right of conquest and of
confiscation” over rebels. It was unfair that civil government and civil courts had re-
opened in the South, and yet, she was denied representation in the US Congress. It read,
“A Congress in which only 26 states are represented asserts the right to govern,
absolutely and in its own discretion, all the 36 states which compose the Union.”
National Unionists seemed particularly perturbed at the exclusion of Southern states in
the amendment ratification process.
In a sense, the Address was completely disillusioned. It said that violence
towards blacks was now only limited to the big cities, where “races and interests are
brought most closely in contact.” It said that the “great mass of the Southern people”
were ready to accept the results of the war and sincerely submit to national supremacy.
“With a zeal quickened alike by their interest and their pride,” Southern states would
“cooperate with other states and sections.” Of course, none of this could have happened
without the “laws of the Union…so firmly taken and so steadfastly pursued by the
President of the United States.” Besides, if any problems did currently exist in the South,
it was “due to the changed tone of the Legislative department…to the action by which
Congress has endeavored to suppress and defeat the President’s wise and beneficial

435
policy of restoration.” On the whole though, there was “no section of the country where
the Constitution and laws of the United States find a more prompt and entire obedience”
than in the South. Demonstrating their completely warped sense of reality, National
Unionists pegged the South as the real victim of the war. Although it ostensibly applied
to both sections, the wording is quite clear that they sympathized for the South: “the
death of relatives & friends, the dispersion of families, the disruption of social systems
and social ties, the overthrow of governments, of law & of order, the destruction of
property and of forms & modes & means of industry, the loss of political, commercial, &
moral influence.” To top it off: “[The] people which engaged in the war against the
government of the United States have suffered tenfold more than those who remained in
allegiance.”
1090

The Declaration of Principles did not fair much better. It stated that the
Constitution was the supreme law of the land, but then quoted the Tenth Amendment
before specifically mentioning the suffrage: “among the rights thus reserved to the states
is the right to prescribe qualifications for the elective franchise therein, with which right
Congress cannot interfere.” It repeated the claims about the exclusion of Southern states
from the amendment process. Though the Declaration commended the service of
“Federal soldiers,” it did not come without a debate on whether or not to include
Confederate soldiers. Finally, it extolled Andrew Johnson:
Johnson…has proved steadfast in his devotion to the Constitution, the laws, and
interests of his country, unmoved by persecution and undeserved reproach, having
faith unassailable in the people and in the principles of free government, we
recognize a Chief Magistrate worthy of the nation and equal to the great crisis

1090
“Address of the National Union Convention,” (1866), archive.org.

436
upon which his lot is cast; and we tender to him, in the discharge of his high and
responsible duties, our profound respect and assurance of our cordial and sincere
support.
1091

In a word, the National Union Convention was laughable. It did not really
accomplish anything. Instead, it restated old principles, over-exalted its leader, and
called for unrealistic policy shifts. The only people interested were those who were
either there or already likely to vote for Johnsonian candidates. If anything, it created a
backlash in which Moderate and Conservative Republicans discovered they were not
National Unionists. The platform seemed underdeveloped. The speeches provided
nothing new or innovative. Some of the attendees were questionable figures. And no
new political party emerged. In sum, the Convention was an utter failure.
Swing Around the Circle
Believing he now had a party organization and electoral base, Johnson set out to
find an issue to campaign on. Foolishly, he decided to attack the most treasured part of
the Moderate program, the Fourteenth Amendment. His decision to launch a lengthy,
public, and vicious assault on the Amendment provided the breaking point. It ensured
that Radicals got elected to Congress, as well as the conversion of Moderates to
Radicalism. If the National Union Convention had delineated the lines between the
Radical/Moderate Party and the Conservative/Democrat Party, Johnson’s “swing around
the circle” ensured the former would win in 1866 and govern in 1867.
Johnson decided he would take his anti-Fourteenth Amendment message to the
people. He gathered as many high profile Conservatives and Democrats who would join

1091
“Declaration of Principles,” (1866) archive.org.

437
him, and embarked on a 21-city tour from late August to early September to promote his
ideas. The tour became known as the “swing around the circle.” Because he could
probably already count on Southern support, the president only stopped in two Southern
locales. Even then, Louisville and St. Louis were hardly Deep South Confederate
territory. All the other stops were in the North or Old Northwest, areas very much up for
grabs in the upcoming election. The idea of the president campaigning for his party has
become commonplace in today’s political scene. In the 19
th
century, though, it was
terribly out of place. Even in presidential elections, the candidates themselves would
usually sit on the sidelines and let their friends campaign, speak, and rally for them.
Riddleberger says, “There was an unwritten but well understood rule that such activity
was beneath the dignity of the presidential office.” Then again, “Never in American
history has there been a mid-term election—and seldom a presidential one—so important
as the election of 1866.”
1092

Despite Johnson’s unpredictability in vetoing measures and his unawareness of
his party following, in late summer 1866, he understood the significance of the upcoming
election. He knew that it would likely be a one-issue campaign in which the American
public would choose to sustain or repudiate Presidential Reconstruction. The swing
around the circle might have been unprecedented, but to Johnson, these were desperate
times. The tour largely resembled modern presidential campaigns as Johnson made the
same speech in city after city. The modern press has accepted that the president cannot
be expected to make a different speech in every city he goes through. Some speeches

1092
Riddleberger, 220, 202.

438
might be more tailored to, say, a Midwest audience. But on the whole, candidates have a
set “stump speech.” Johnson employed the same. In fact, he started every speech saying
that it was not his intention in appearing to make a speech. He would then launch into a
set address, in which he compared himself to Jesus, explaining he was a savior figure
trying to deliver the country from Radicals.
1093
In 1866, the press was more partisan, and
once they caught on, they criticized the president for putting on the same act and making
the same speech.
The tour reached its low on September 3, when the president stopped in
Cleveland. A crowd gathered outside his hotel room and implored him to come out.
Never one to turn down recognition and applause, the president stepped outside and made
some innocuous comments. Castel writes, “At this point, he should have retuned to his
room. But once again, he succumbed to oratorical self-intoxication and to his craving for
vindication. The exchange went as follows:
JOHNSON: I came here as I was passing along, and have been called upon for the
purpose of exchanging views, and ascertaining, if we could, who was wrong.
CROWD: It’s you!
JOHNSON: Who can come and place his finger on one pledge I ever
violated, or one principle I ever proved false to?
CROWD: Hang Jeff Davis?
JOHNSON: Hang Jeff Davis, he says. Hang Jeff Davis, he says. Hang Jeff
Davis. Why don’t you hang him?…I am not the Chief Justice. I am not the
prosecuting attorney. I am not the jury. I will tell you what I did do. I called
upon your Congress that is trying to break up the government—
CROWD: Don’t get mad, Andy!
JOHNSON: Well, I will tell you who is mad. “Whom the gods which to
destroy, they first made mad.” Did your Congress order any of them
tried?
CROWD: Traitor!

1093
Hans Louis Trefousse, Andrew Johnson: A Biography (New York: Norton, 1989): 263.

439
JOHNSON: I wish I could see that man. I would bet you now, that if the
light fell on your face, cowardice and treachery would be seen in it. Show
yourself. Come out here where I can see you.
CROWD: Is this dignified?
JOHNSON: I care not for dignity.
1094

Gideon Welles could have told the heckler that Johnson cared not for dignity.
Before leaving, Welles practically begged Johnson not to make the tour. Welles told the
president that it was undignified for a president to “go on the stump.” Privately, Welles
also had reservations about Johnson’s tendency to launch into raging tirades when he
gained an audience. Johnson did not listen, and Welles wrote, “[the] President…
manifestly thought I did not know his power as a speaker.”
1095
Eventually, the
conversation in Cleveland deteriorated to the point where Johnson said that he would
hang Thad Stevens and Wendell Phillips. The tour, also, deteriorated. The mayor of
Pittsburgh declined an invitation to attend the president’s event because he did not want
to be “stigmatized.”
1096
Ulysses Grant, who had been part of the celebrity entourage that
accompanied Johnson, abandoned the tour. He made an excuse about wishing to visit his
father, but privately, Grant told a friend the he did not want to “accompany a man who
was deliberately digging his own grave.”
1097
Later on, Grant stuck with the death motif
calling the swing around the circle a “national disgrace. I am disgusted at hearing a man

1094
Portions quoted in Castel, 91; and Cyclopeadia of Political Science, Political Economy, and the
Political History of the United States, edited by John J. Lalor, econlib.org.

1095
Quoted in Castel, 91.

1096
Riddleberger, 220.

1097
Quoted in Donhardt, 101.

440
make speeches on the way to his funeral.”
1098
When Johnson returned to Washington,
another admiring contemporary called it “a tour it were better had never been made.”
1099

One completely non-political swing incident might epitomize the political
feelings behind the tour. When the train reached New York, US Grant challenged the
president to a carriage race in Central Park.
1100
Civil War and military historians widely
note that despite Grant’s difficulties at West Point, he was always an excellent
horseman.
1101
Johnson must have known this. Still, the brash president accepted the
challenge. Naturally, he lost. The thought that Johnson could take on the outstanding &
experienced Grant speaks volumes to Johnson’s unwarranted overconfidence in his own
abilities. That overconfidence spilled over into his political career. The Fourteenth
Amendment was Republican turf—consensus-building, popular, and moderate (in the
sense that it worked with Presidential Reconstruction). By attacking the most cherished
portion of the Radical/Moderate program, the president came off as irrational and
unreasonable. Then again, Johnson had never relied on party organization. He had
always thought that he was above—or at least outside the bounds of—the party. “The
key to his success had always been his ability to appeal directly to the people,” one
biographers notes.
1102
As a Congressman and Senator, he had always been at the
forefront of state politics in Tennessee. He could write his own platform and confidently

1098
Quoted in Simpson, 108.

1099
Quoted in Foner, 265.

1100
Castel, 91.

1101
For example, see Jean Edward Smith, Grant (New York: Simon & Schuster, 2001): 28; and William S.
McFeely, Grant: A Biography (Norwalk, CT: Easton Press, 1987): 19-20.

1102
Castel, 91.

441
expect to be re-elected. As military governor, he had the power of the US Army behind
any of his proclamations. Unfortunately, the rules of the game were different for Johnson
once he entered the White House. As president, he could not expect to single-handedly
take on a popular Congress in a time when Congress was the dominant political
institution.
The swing around the circle was an unqualified disaster. Instead of garnering
support for Conservatives and Democrats in the upcoming election, it actually convinced
more voters to vote Radical/Moderate. Even more importantly, during the swing,
Radicals took advantage of the inept president to present their version of reconstruction
as the natural, and only, alternative. Radical attacks on the president were virulent.
Sumner said that while Jeff Davis sat in prison, Johnson continued his work: “Next to
Jefferson Davis stands Andrew Johnson as [the country’s] worst enemy.” Carl Schurz, a
leading ideologue in the Radical movement, said, “If there is any man that ought to
hang…it is Andrew Johnson.” Ever the dramatic politician who knew an opportunity
when he saw one, Stevens blasted, “I cannot begin to attempt to unfold the policy of that
man…You all remember that in Egypt the Lord sent frogs, locusts, murrain, and lice, and
finally demanded the blood of the first born of all the oppressors…He has sent us
more…[He] has afflicted us with Andrew Johnson.”
1103

Historians typically agree that Republicans won big in 1866. However, when one
looks at the partisan makeup of the 39
th
and 40
th
Congresses, there is not much difference
to be found. In the 1866 elections, Republicans stole 12 House seats that had previously

1103
Quoted in Riddleberger, 220-221.

442
been held by the opposition. Democrats, on the other hand, took five Republican seats.
In the Senate, Democrats held all their seats except one. So overall, Republicans gained
seven seats in the lower house and one in the upper house. These increases hardly
constitute major electoral landslides. Plus, while Republicans had voted out some of the
Democracy’s big names (e.g., Rogers & McDougall), a couple others (e.g., James Brooks
& Fernando Wood) came to office. So why do we conclude that Republicans won big?
There are three reasons. First, when Tennessee ratified the Fourteenth Amendment and
gained back the right to representation, she sent eight Republicans to the House. One of
her Senators caucused with the Republicans as well. Secondly, half a dozen other
Southern states were re-admitted by the time the 40
th
Congress dispersed. Here is where
the big additions came. By the time the 40
th
Congress dispersed, Republicans had picked
up 30 seats in the House and an incredible 13 in the Senate
Table 82. Republican gains.
Chamber Republican gains Democratic gains Other
House 24 1 1
Senate 12 0 0

The biggest reason why the election of 1866 is considered a Republican rout lies
in the fact that the race had been an ideological referendum on Johnson’s reconstruction
policies. Johnson had put so much into trying to gain back a Conservative/Democrat
majority. The ability of the Republicans to keep Congressional majorities relatively the
same (with a small increase) represented a huge win for the GOP. The electorate had
sent a message: Presidential Reconstruction had been repudiated. This killed the
Moderate leadership in the Radical/Moderate coalition because Moderates had always
believed in rehabilitating Presidential Reconstruction. Moderates did not have an

443
alternative to Johnson’s plan; they only had constructive suggestions. When the public
repudiated Presidential Reconstruction, they also repudiated the Moderate plan to
improve on it. Radicals took over the Radical/Moderate coalition, and Moderates fell in
line, just like the Radicals had done when Trumbull and Sherman had guided the
coalition.
The Two Factions
Reconstruction saw a host of different political groupings: Radical Republicans,
Moderate Republicans, Conservative Republicans, and Unionists. Deciphering where the
different factions stood on any given issue is a difficult task. Generally, we can say that
the Conservatives and the Democrats were always in the president’s camp, regardless of
who held the presidency, but especially when Andrew Johnson occupied the White
House. Moderates swung back and forth between the right and the left. On issues like
black suffrage, they allied with the Conservatives/Democrats. On most issues, though,
like the Fourteenth Amendment, they allied with the Radicals. Looking back, it is fair to
say that Radicals/Moderates composed the electorally dominant national coalition. Of
course, that electoral coalition had no consensus ideology. That is, not every member of
the coalition agreed to the same set of principles, largely because remnants of the
resistance still existed in Congress. Indeed, it existed in the White House too, which
probably presented the main obstacle for Radicals in dictating the terms of the
Radical/Moderate coalition.

444
Table 83. Reconstruction Factions.
Issue Radicals Moderates Conservatives/Democrats
Freedmen’s
Bureau Bill
For For Against
Civil Rights
Bill
For For Against
Black
Citizenship
For For Against
Military
Occupation
For For, but limited Against
Military
Courts
For For Against
Ironclad
Oath
For For Against
Retribution for
Rebellion
For Against Against
Black
Suffrage
For Against Against
Southern
Representation
Against For For
Repudiation of
Rebel Debt
For For For

In terms of the coalition, Moderates of the 39
th
Congress always dictated the
terms when it came to doing business with the Radicals. Whether he realized it or not,
the Moderates tried working with Johnson, not against him. It’s astonishing that the
Freemen’s Bureau and Civil Rights vetoes did not alienate Johnson. Still, they pressed
forward trying to alter slightly Presidential Reconstruction. The Fourteenth Amendment
still allowed Southern states to deny black suffrage, so long as they were willing to accept
the representation consequences. The Amendment did not ban any rebels from voting
either. And the most common theme during the debate was how the Radicals seemed
somewhat disappointed with the final draft of the Amendment. The two-thirds victory in
both chambers was the capstone of the Moderate program. Even the recalcitrant

445
president could not go out of his way to thwart it. Even his initial passive/aggressive
displeasure with the Fourteenth Amendment did not discourage Moderates. They still
allowed Tennessee back into the Union under Moderate conditions.
Unfortunately for Moderates, they did not count on Johnson going public with the
issue. And herein lies the turning point of the early Reconstruction period: Johnson’s
decision to make the Fourteenth Amendment the electoral issue in 1866 forced the
Moderates to choose between sustaining or repudiating their most prized legislative
victory. This is where the real shift in party systems and the real fissure in partisan
politics took place. In the eyes of the electorate, the choice in 1866 had come down to
Radicalism and Presidential Reconstruction—whether it was Johnsonian or Moderate in
form. Moderates could not maintain a Moderate position and still expect to be heard.
The swing around the circle might have kept the Radical/Moderate faction in the
majority, but it swung control of the coalition from Moderates to Radicals. And so, by
1866, we had an electorally dominant national coalition with a clear, comprehensive
ideology that all members of the coalition could agree on. Radicals agreed on a platform
because it was radical. Moderates agreed on a platform because, they had no choice. By
1866, Radicalism was the dominant force in American politics.
Ex Parte Milligan
In Ex Parte Milligan, the Supreme Court decided that military courts could not
hear cases wherever the regular courts were open and operating normally. The decision
was a blow to the Radicals/Moderates. They had inserted clauses on military courts in
both the Freedmen’s Bureau and the Civil Rights bills. They believed that courts staffed

446
by military, or Bureau, personnel would be more likely to uphold Radical/Moderate
policies, like black rights. Federal courts staffed by federal judges—who could only take
their seat if they could take the ironclad oath—probably were trustworthy. Although,
federal judges would like have some different interpretations regarding issues like states
rights and property rights. Radicals/Moderates felt it much better to leave it to military
courts, especially when it came to local and state law. Because the Black Codes had
institutionalized discrimination, Southern judges had to enforce racist policies. To not do
so would be to violate their oath of upholding state law. In terms of interpreting Southern
state and municipal laws, Radicals/Moderates knew that military courts provided the only
realistic option.
Ex Parte Milligan has come to be seen as a victory for individual rights, as well as
law and order. Modern legal theorists believe it was ahead of its time, and a few even
comment on the backdrop in which the decision was handed down. That backdrop was
one of a dominant coalition that completely disagreed with the decision for purely
substantive reasons. During another period, Radical/Moderate Congressmen might have
agreed with the procedural decision: that US and state courts should hear all legal cases.
During Reconstruction, though, there was simply too much to be lost by allowing federal,
and especially state & municipal courts, to hear cases. Black civil and political rights
hung in the balance. Sometimes, their personal safety was at stake. Military courts were
an essential part of the Radical/Moderate program. Shutting them down took away one
of the pragmatic means for establishing racial justice in the South. Although the Court
was made up of mostly Republicans, these were different kinds of Republicans. They

447
were Lincoln appointments—mainly concerned with winning the war, and after it,
restoring the nation as quickly as possible. Military courts had no place in their ideology.
And so, as with the early Jacksonian period, we see a rising dominant coalition meeting
the challenge of a Supreme Court staffed by those with a different political orientation.
The Old Guard might not have been as old as in Jackson’s first couple years; but they still
represented the dying ideology.
Case Background
In 1864, the Indiana governorship was a hotly contested race. Republicans ran
incumbent Oliver P. Morton, a popular Moderate who had national influence. Democrats
chose the relatively moderate Joseph McDonald over Lambdin Milligan. At that point,
Harrison Dodd, a Southern-sympathizing Democrat, devised a plan to overthrow the state
government, seize an arsenal, and free Confederate prisoners. The grand plan was to
declare independence from the Union, set up a Northwestern Confederacy, and join
forces with the Southern Confederacy. One author believes the plot involved
assassinating Morton.
1104
Dodd even had the financial backing of a Confederate agent in
Canada. Fortunately, Morton had placed a detective within Dodd’s inner circle. The
governor did nothing at first, thinking that were such an insurrection to take place, the
Republican governor could probably put it down easily, and thereby increase his electoral
chances. As the election grew closer, Morton moved in. On August 20, 1864, military
authorities invaded Dodd’s printing house and seized 400 revolvers and ammunition.

1104
Frank Sullivan, Jr., “Indianapolis Judges and Lawyers Dramatize Ex Parte Milligan, A Historical Trial
of Contemporary Significance” Indiana Law Review (2004).

448
Morton honestly declared his intentions, that an immediate trial was “essential to the
success of the National cause in the autumn elections.”
1105

Unfortunately for the governor, the commanding military general in the area
believed Morton had no right to try Dodd and his co-conspirators in military court.
Wielding his political influence, Morton had the general replaced with Alvin Hovey, a
political general who understood the electoral implications. Hovey did not get in
Morton’s way.
1106
Still, the brigadier general charged with trying Dodd had his doubts.
General Henry Carrington was a lawyer, and believed Dodd should have been tried in
federal courts. Secretary of War Stanton and Governor Morton, though, instructed
General Carrington to remove the court to a military commission. He grudgingly
complied.
1107
The trial began on September 22, 1864. Dodd denied that the military
court had jurisdiction. His claim did not win. Kenneth Stampp describes the trial as
having “the atmosphere of a political rally.” Detectives and renegade witnesses paraded
up to the stand to testify to the treasonable nature of Dodd’s activities. Stampp notes that
one witness confessed that he had been promised immunity from the draft if he would
testify against Dodd.
Meanwhile, the Republican Party played up the issue and attracted a sizable
contingent to its rolls. Stampp writes, “Intense excitement supplanted the former apathy
as loyal men were instructed in the need to vote down the rebellion at home.” Then,

1105
Quoted in Kenneth Stampp, “The Milligan Case and the Election of 1864 in Indiana,” Mississippi
Valley Historical Review Vol. 31, No. 1 (June 1944): 41-58.

1106
Stampp, “Milligan.”

1107
Charles Fairman, Reconstruction and Reunion, 1864-1888 (New York: Macmillan, 1971): 192-200.

449
Dodd chose a route that probably sealed the deal for Morton’s victory: he escaped prison.
Republicans, of course, proclaimed that the escape was conclusive proof of his guilt.
When election time came, Morton won by more than 20,000 votes—a considerable
margin considering he was neck-and-neck with McDonald only a few months earlier.
Republicans also took back the state legislature and sent eight Republicans to Congress
(as opposed to only three Democrats). Looking back, Dodd’s conspiracy, apprehension,
trial, and escape all played right into Republican hands. One cannot imagine a better
sequence of events in terms of winning votes in the state. With the election over, the fuss
over the Dodd insurrection died down. But the military still held Dodd’s co-conspirators,
including Lambdin Milligan. Morton brought them to trial under military courts,
subjecting them to the same type of proceedings Dodd had undergone: questionable, and
possibly bribed, witnesses. The trial dragged, but public interest waned after the
elections. In December, the court secretly found Milligan, and others, guilty. They were
scheduled to hang.
1108

Interestingly, Joseph McDonald—Milligan’s primary election foe—then
petitioned Lincoln to commute the death sentence. Lincoln looked over the paperwork
and found errors. He ordered the errors to be fixed and sent back to him, so he could
review whether or not to grant clemency. Lincoln’s real plan, however, had been to buy
time. He hoped that the war would end, and that he could pardon Milligan without any
notice. Once the war ended, the president said, “We shall none of us want any more
killing done…I’ll keep them in prison awhile to keep them from killing the

1108
Stampp, “Milligan.”

450
government.”
1109
In a turn of bad luck, Lincoln was assassinated, and the new president,
Andrew Johnson had made his recent career on promising to make Southerners pay for
their transgressions. On May 2, 1865, Johnson signed an order providing for the
execution of Milligan on May 19. On May 10, Milligan appeared before the Circuit
Court (held by Justice David Davis and Judge David McDonald) to seek a writ of habeas
corpus. By this time, no one really wanted to see the sentence carried out. Republicans
were keenly worried about making a martyr out of Milligan. In fact, Morton had sent a
letter to the president asking him to grant clemency.
Meanwhile, Justice Davis sent Johnson an extensive letter telling why the
president should commute the sentence. Davis did not “question the guilt of these men,”
but “the whole aspect of things has since so entirely changed.” Davis stated that the court
that heard Milligan’s case was “unknown to common law.” He told the president that he
had not ruled on whether the court was Constitutional or not, just that “it is not clear of
difficulty.” In addition, he could not think of a single citizen who had been executed by
order of a military tribunal. Davis worried about setting a precarious precedent, as well
as the possible consequences. “If these men are executed now, and the federal Judiciary
should hereafter deny the jurisdiction under which they were tried, the government would
be justly chargeable with lawless oppression,” he wrote. It would be “a stain on the
national character.” The Supreme Court Justice also noted the effect on the public,
saying that Milligan would be regarded as a public martyr were he to hang. On May 16,
Johnson postponed the death sentence another couple weeks, to June 1. On May 30, two

1109
Quoted in Fairman, 192-200.

451
days before the scheduled hanging, Johnson commuted the sentence to life imprisonment
at hard labor.
1110

The case came to the Supreme Court after Justice Davis and Judge McDonald
disagreed in their opinions on whether to grant Milligan the writ. An 1802 law had
provided that if two Circuit Court judges were divided, they could certify the case the
Supreme Court based on the issues of disagreement. Davis took advantage, outlining the
questions involved:
1) On the facts stated in the petition and exhibits, ought a writ of habeas
corpus to be issued according to the prayer of said petitioner?
2) On the facts stated in the petition and exhibits, ought the said Milligan to be
discharged from custody as in said petition prayed?
3) Whether, upon the facts stated in the petition and exhibits, the military
commission had jurisdiction legally to try and sentence said Milligan in
manner and form, as in said petition and exhibit is stated.
1111

At the Supreme Court, counsel for the US tried to argue the Supremes did not
have jurisdiction in the case. They said that the record showed that there was only one
party to the case—Milligan. They even pointed out the title of the case, Ex Parte
Milligan. Without the proper parties, counsel claimed, the Court could not hear the case,
for legal disputes were between two proper parties. It was a silly argument, and the Court
easily disposed of it, moving quickly into the question on the merits.
Oral Argument
Attorney General Speed and Benjamin Butler made the argument for the United
States. They pointed out that Milligan sought to except himself from military courts by

1110
See Sullivan, Stampp, “Milligan,” and Fairman, 192-200.

1111
Ex Parte Milligan 71 U.S. 2 (1866).

452
showing he was an ordinary civilian, and having never been in the military, he was not
subject to military courts. Counsel said this defense was faulty: as commander-in-chief,
the president had “the power to arrest and punish one who arms men to join the enemy in
the field against him; one who holds correspondence with that enemy; one who is an
officer of an armed force organized to oppose him.” For good measure, counsel threw in,
“one who is preparing to seize arsenals and release prisoners of war taken in battle and
confined within his military lines.” Not only was Constitutional theory on the side of the
US, but so was the law. Butler and Speed pointed to Lincoln’s proclamation that read,
“all persons…guilty of any disloyal practice, affording aid and comfort to rebels, against
the authority of the United States, shall be subject to martial law, and liable to trial and
punishment by courts martial or military commission.” The second section of the
proclamation called for the suspension of the writ of habeas corpus for suspects in
military prisons awaiting military trial. Counsel alluded to two other points. First, the
proclamation applied to “any portion of the Union.” Secondly, Butler and Speed claimed
the president, as commander-in-chief, had the authority to make such proclamations. But
even if he didn’t, Congress subsequently ratified Lincoln’s proclamation. Altogether,
The offenses for which the petitioner for the purpose of this hearing is confessed
to be guilty, are the offenses enumerated in this proclamation. The prison in
which he is confined is a ‘military prison’ therein mentioned. As to him, his acts
and imprisonment, the writ of habeas corpus is expressly suspended.

Butler and Speed might have been best to leave it at this. The preceding
description is a brief Constitutional opinion on the scope of the Commander-in-Chief
clause and the presentation of clear laws that obviously backed their claim. Instead, they
also pushed another argument, that of necessity. They claimed that martial law initiated a

453
new set of rules, one in which “the officer executing martial law is at the same time
supreme legislator, supreme judge, and supreme executive. As necessity makes his will
the law, he only can define and declare it.” Moreover, any offenses against the military
laws had to be adjudicated by military courts. Counsel noted that the plaintiffs were
likely to bring up the Fourth, Fifth, and Sixth Amendments as limitations on the war-
making powers. “But we deny this,” the US attorneys proclaimed, “These in truth, are all
peace provisions of the Constitution, and, like all other conventional and legislative laws
and enactments, are silent amidst arms, and when the safety of the people becomes the
supreme law.”

The Constitution meant one thing during times of safety, and another—
essentially a dead letter—during wartime.
Future President James Garfield, one-time Supreme Court nominee Jeremiah
Black (whose bid had failed by a single vote), and David Dudley Field (brother of
Supreme Court Justice Stephen J. Field) represented Milligan. They each presented their
own argument. There was some overlap, but for the most part, each lawyer had his own
reasoning. Although D.D. Field started out by saying that it was a case about the rights
of individuals, his argument mainly goes to work on separation of powers. He asked, “Is
it true, that the moment a declaration of war is made, the executive department of this
government, without an act of Congress, becomes absolute master of our liberties and our
lives?” Was there no one to control him? Was everyone, including other officials,
subject to his will? He said that Congress had never passed a law suspending the writ of
habeas corpus. (He never addressed the fact that Congress upheld the president’s
suspension.) Field did admit that the Legislature had written four laws that deal with

454
military tribunals, but they dealt with spies and, as quoted from one of the bills, “persons
who are in the military service of the United States.” They did not confer jurisdiction
over civilians. And since Milligan was a “simple citizen, not belonging to the army or
navy,” he was ineligible to go before military courts. Besides, “the petitioners could have
been tried and punished by the ordinary civil tribunals…[since] Indiana, at the time of
this trial, was a peaceful state; the courts were open; their processes had not been
interrupted; the laws had their full sway.” Field believed:
This brings up the true question now before the court: Has the president in time of
war, upon his own mere will and judgment, the power to bring before his military
officers any person in the land, and subject him to trial and punishment, even to
death? The proposition is stated in this form, because it really amounts to this.

Field ruled out the possibility of most Article II provisions that might give the
president such power. He ruled out the “executive power” clause because it called for the
president simply to carry out Congressional legislation. He said the oath of office did not
cover the power because “its effect, is merely to superadd a religious sanction to what
would otherwise be his official duty, and to bind his conscience.” Finally, although some
Republicans had claimed that the power came through the Commander-in-Chief Clause,
Field said that it only related to commanding an actual army, “whether in camp, or on the
march, or in battle. [It] requires the control of no other persons than the officers, soldiers,
and camp followers.”
The president had no control over civilians. Without Congressional approval, he
could not “create military commissions for the trial of persons not military.” It was
inconsistent, not only with personal liberty, but also with constitutional government.
Field further stated, “Much confusion of ideas has been produced by mistaking executive

455
power for kingly power.” In fact, under our Constitutional system, there was no such
thing as martial law; it was “martial rule,” which really had no place. Fortunately, Field
argued, the Constitution had a “great remedy” to the unlawful and pretended decrees of a
runaway executive: the writ of habeas corpus. He spent almost no time whatsoever on
the courts’s exclusive ability to grant the writ. “That it lies with the judiciary will hardly
be contended.” Field then went in-depth on why only Congress, and not the president,
could suspend habeas corpus. First, the debates during the Constitutional Convention
clearly showed that the framers believed the power lied with the Legislature. Secondly,
the states that ratified the Constitution also clearly believed the same. Third, “the place
in which the provision is left indicates, if it does not absolutely decide, that it relates only
to the powers of Congress.” That is, its placement in Article I meant Congress had the
authority. Next, the framers had acted with such “dislike and dread of executive
authority,” that they would not dare put it in the president’s hands. Finally, “every
judicial opinion, and every commentary on the Constitution, up to the period of the
Rebellion, treated the power as belonging to Congress, and to that department only.”
Garfield gave some attention to the obvious issues. He said that military courts
could not try citizens. Allowing such an infraction amounted to violating the right to a
speedy trial before a legal court. He said that one implication of the case was the
silencing of civil courts and the suspension of the Constitution. In what must have been a
purely political move, Garfield said that the Confederate States had suspended habeas
corpus, but that the writ had been granted for every case, except one. These platitudes

456
aside, Garfield’s real contribution came in his argument about the jurisdiction of federal
courts.
Garfield conceded that the “military department” of government might be best run
as an “organized despotism.” But even that department had marked boundaries, with
members controlled by prescribed law. He explained that Congress had made laws
dealing with judicial jurisdiction for the crimes Milligan was accused of. The charge of
“conspiracy against the government of the United States” had been defined by Congress
and placed in the hands of District and Circuit Courts. The second charge was “affording
aid and comfort to the rebels against the authority of the United States,” which Congress
had named, exactly, as belonging to US Courts. Charge #3, “inciting insurrection,” also
fell to federal courts under ten separate acts that defined what constituted insurrection.
The next charge, “disloyal practices,” proved more difficult to uncover. Counsel
rationalized that the only way to apply it to Milligan was to define his disloyal practices,
and then look up whether Congress had passed a law on those practices. Milligan had
discouraged enlistments and made preparations to resist a draft, both of which had been
expressly placed under federal courts’s jurisdiction. The final charge, “violation of the
laws of war,” operated the same way. Through a secret organization, Milligan had
attempted to aid and comfort rebels, which, under statute, fell into the hands of US
Courts. Obviously, Garfield concluded, every charge against Milligan provided for a
federal judge to hear the case.

457
Black came last, supposedly giving his entire, and quite lengthy, argument
without referring to his notes.
1112
He started off by somewhat disgustedly: “The whole
proceeding from beginning to end was null and void.” He stated what the other two
already mentioned: that Milligan was an ordinary citizen, the regular courts were open,
and he could not be tried in military courts. Black, though, seemed to state it most
formidably:
[This was] a tribunal for the trial and punishment of citizens who were connected
no way whatever with the army or navy. And this they did in the midst of a
community whose social and legal organization had never been disturbed by any
war or insurrection, where the courts were wide open, where judicial process was
executed every day without interruption…A person not in the military or naval
service cannot be punished at all until he has a had a fair, open, public trial before
an impartial jury, in an ordained and established court.

In a particularly forceful line Black said the Court’s obligation bound them to find
for the poorly treated Milligan: “It is as much the duty of a judge to protect the innocent
as it is to punish the guilty.” Black then made what must have been a pretty intuitive
argument. He essentially claimed that the job of a court was to be a court. He said, “The
self-evident truth will not be denied that the trial and punishment of an offender against
the government is the exercise of judicial authority.” To allow military tribunals to
overtake the responsibility and authority of US judges was folly; “A judge would be no
judge if everybody else were a judge as well.” Black then turned to the Constitution,
pointing out that the judicial power was vested in one Supreme Court and in
Congressionally-ordained-and-established inferior courts. He believed his point so
incontrovertible that he did “not propose to [defend] it by a long chain of legal

1112
Fairman, 204.

458
argumentation.” If he needed judicial precedent, he could provide as many as necessary;
but it wasn’t necessary. “The truth is,” Black asserted, “that no authority exists anywhere
in the world for the doctrine of the Attorney General.” No judge, jurist, statesman,
writer, military author, or book backed the opposition’s claim.
Black also confronted the “necessity” claim head-on. He admitted, “the merits or
demerits of any particular act, whether it involve a violation of the Constitution or not,
depend upon the motives that prompted it, the time, the occasion, and all the attending
circumstances.” But Black thought that wartime presented the time when the
Constitution needed its most stringent enforcement, and not maneuvering around the
document. “In peaceable and quiet times, our legal rights are in little danger,” but in
wartime, “violence and rage” threatened liberties. Moreover, Black contended, the
necessity argument was a poor one in this case because trying Milligan in military courts
was not necessary. The whole line of defense was inherently dangerous. “Nothing that
the worst men ever propounded has produced so much oppression, misgovernment, and
suffering, as this pretences of state necessity.” Taking a tactic from Field, Black restated
Butler and Field:
This, therefore, must be their position: That although there was no war at the
place where this commission sat, and so actual necessity for it, yet if there was a
war anywhere else, to which the United States were a party, the technical effect of
such war was to take the jurisdiction away from the civil courts and transfer it to
army officers…They may not state their proposition precisely as I state it; that is
too plan a way of putting it.

This line of argument had dangerous implications. It meant that presence of war
in South Carolina naturally led to the suspension of regular court activity everywhere
else. It deprived citizens of their right to a fair trial. If one carried out the State’s

459
doctrine, “the right of trial by jury being gone, all other rights are gone with it; therefore a
man may be arrested without an accusation and kept in prison…his papers may be
searched without a warrant; his property may be confiscated.” Of course, he would have
no means of redress; in fact, “he dare not even complain, for the right of free speech is
gone.” Once military courts overtook US courts, the whole legal system tumbled into
ruins, and the people were left “to the mercy or policy of those persons who may then
happen to control the organized physical force of the country.” Worse, the president or
Congress could provoke a war to keep people in check. Worse yet, “we are at the mercy
of any foreign potentate who may envy us the possession of those liberties which we
boast of so much; he can shatter our Constitution without striking a single blow…A
simple declaration of hostilities is more terrible to us than an army with banners.” Black
declared that the framers never would have left the country in such a state of anarchy.
“This government of ours has power to defend itself without violating its own laws; it
does not carry the seeds of destruction in its own bosom.”
Butler responded to Milligan’s claims. First, he denied the claims that the action
taken was unnecessary. Butler admitted that if there were no military operations in
Indiana, no army, or no need for an army, then the military court would be unnecessary.
But as it were, the state had been constantly threatened with invasion. Did that not
constitute a state of war? As a matter of fact, Butler contended, “Justice could only be
administered in Indiana because of the immediate protection of the bayonet.” This
constituted the “existence of warlike operations” in the state. Plus, a military commission
was not a court. It derived its power from martial law, and it could only hear cases that

460
dealt with such law. Counsel pointed out Ex Parte Vallandigham, in which “it was
decided that a military commission is not a court.” Finally, because Supreme Court
Justices had no judicial superior, it would be beneath them—and “inconsistent with the
dignity of the tribunal whose robes he wears”—to preside over cases where martial law
was in effect. It placed a Justice in an uncomfortable position of possibly being
overruled. Instead, Butler submitted “that all crimes and misdemeanors…which have
occurred during the progress and as a part of the war, however great the criminals, either
civil or military, should be tried upon the scene of their offense, and within the theatre of
military operations.”
Butler then responded to some of the more specific claims brought by Milligan’s
lawyers. He discredited Black’s claim that he could list off precedent after precedent
supporting his case. Butler claimed that the situation was so unique, and Civil War so
unprecedented, that to find precedent was illogical and impossible. He addressed the
claims that it violated parts of the Bill of Rights by claiming that the Constitution put no
limitations on the war power, except the suspension of the writ of habeas corpus. Even
then, the Constitution allowed for its suspension under certain circumstances. In
response to counsel’s claim of “how far did martial law go,” Butler stated that it operated
under some limitations. First off, it could only be employed under a time of war. Also,
any commander’s dictates were under review of a superior officer. Under these
circumstances, “martial law is known to our laws; it is Constitutional.”
1113

1113
Ex Parte Milligan 71 U.S. 2 (1866).

461
The Opinion of the Court
The Court unanimously decided that the military court had no jurisdiction in
Milligan’s case. Four of the Justices concurred. David Davis, a longtime friend and
political ally of Lincoln, wrote the majority opinion. He pointed out that this was not a
case to determine whether Milligan was innocent or guilty. The case had been brought to
the court to determine whether Milligan deserved trial before another, more proper court,
and/or whether he deserved a discharge via his right to habeas. As Davis put it, “The
controlling question in the case is this: Upon the facts stated in Milligan’s petition, and
the exhibits filed, had the military commission mentioned in it jurisdiction, legally, to try
and sentence him?” Davis mentioned that “no graver question” had ever been considered
by the Supreme Court, for it touched the lives of everyone. “It is the birthright of every
American citizen when charged with crime, to be tried and punished according to law.”
In addition, the decision whether or not to grant the writ of habeas corpus was not a
decision on the merits. Rather, it simply declared whether or not Milligan was denied his
procedural rights. All that said, if Milligan were to be tried on the merits, and were found
guilty, then “he deserved severe punishment.” Davis said that treasonous conspiracies
“should receive the heaviest penalties of the law, as an example to deter others from
similar criminal conduct.”
At base, Davis decided that where normal courts were open, civilians could not be
tried by military tribunals. “One of the plainest Constitutional provisions was, therefore,
infringed.” Davis pointed out that Milligan was a private citizen, not a soldier. “No
usage of war could sanction a military trial there for any offense whatever of a citizen in

462
civil life, in no ways connected with the military service.” He brushed aside the claim
that Milligan was really a prisoner of war: “He lived in Indiana for the past 20 years, was
arrested there, and had not been, during the late troubles, a resident of any of the states in
rebellion.” The courts in Indiana, including the US Circuit Court, were open. Davis
wrote, “It needed no bayonets to protect it, and required no military aid to execute its
judgments.” Now, Davis did concede that military tribunals could be employed under
some circumstances. If an invasion threatened a state so much so as to shut down its
courts and depose the civil administration, then martial law could be imposed. If it were
“impossible to administer criminal justice according to law, then, on the theatre of active
military operations, where war really prevails…and as no power is left but the military, it
is allowed to govern by martial rule until the laws have their free course.” But this was
not the case in Milligan’s plea. Davis said he had difficulty understanding why Indiana
required martial law.
Davis backed his opinion with a number of Constitutional provisions. He pointed
to Article III, which stated that “all crimes, except in cases of impeachment, shall be by
jury.” Milligan had been brought before military commissioners, and therefore, this
“guarantee of freedom was broken.” Davis seemed particularly distressed at this
violation. He decried, “This privilege is a vital principle, underlying the whole
administration of criminal justice; it is not held by sufferance, and cannot be frittered
away on any plea of state or political necessity.” In addition, the proceedings had
violated the Fourth, Fifth, and Sixth Amendments. An illegal and unreasonable warrant
had been issued. Milligan had been deprived of his liberty (and almost his life) without

463
due process of law. And he had been denied the right to a speedy and public trial by an
impartial jury. Finally, the proceedings had not even taken place under a state-sponsored
court of law. Davis plainly pointed out that every trial had to involve judicial authority.
And the Constitution laid out that the judicial power rested in one Supreme Court or other
inferior courts, as created by Congress. “It is not pretended that the commission was a
court ordained and established by Congress,” Davis wrote.
Finally, Davis took on the necessity claim. He did want his opinion to be
construed as to say that the US could never declare martial law. Nor was it a question of
whether a military commander could impose martial law on rebellious states. This was a
question about employing martial law on the relatively peaceful domestic front. “The
jurisdiction claimed is much more extensive.” Using the same strategy as Field and
Black, Davis restated the State’s claim:
The proposition is this: that in a time of war the commander of an armed force (if
in his opinion the exigencies of the country demand it, and of which he is to
judge), has the power, within the lines of his military district, to suspend all civil
rights and their remedies, and subject citizens as well as soldiers to the rule of his
will; and in the exercise of his lawful authority cannot be restrained, except by his
superior officer or the President of the United States.

For the Associate Justice, this doctrine had “pernicious consequences.” If war
existed, the country could be divided into military districts and respective commanders
could rule without fixed rules. It would destroy civil liberty, for “civil liberty and this
kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the
conflict, one or the other must perish.” It would result in the failure of republican
government, because there would be “an end of liberty regulated by law.” Finally, “such
a doctrine leads directly to anarchy or despotism.” Surely the Constitution did not stand

464
for such insidious outcomes. No, Davis proclaimed, “The Constitution has all the powers
granted to it, which are necessary to preserve its existence; as has been happily proved by
the result of the great effort to throw off its just authority.”
1114

Chase’s Concurrence
Chief Justice Salmon P. Chase penned a concurrence. Justices Wayne, Swayne,
and Miller joined the opinion. Much of Chase’s concurrence reads like Davis’s. Chase
believed that, if the facts were correct, Milligan was guilty and should be punished. But
he recognized the procedural claim, too. “It is more important to the country and to every
citizen that he should not be punished under an illegal sentence,” he wrote. “The laws
which protect the liberties of the whole people must not be violated or set aside in order
to inflict, even upon the guilty, unauthorized though merited justice.” Since the law
allowed for Milligan to appeal for the writ, and since the US had violated the law
regarding his appeal, Milligan was entitled to remove his case to another court. Chase
stated that the Circuit Court had been uninterrupted in Indiana and that Milligan was not
a prisoner of war. Solely based on those surface-level facts, one would assume that he
could not be tried by military commission. In sum, “We do not doubt that the Circuit
Court for the District of Indiana had jurisdiction of the petition of Milligan for the writ of
habeas corpus.”
Chase’s dissent from Davis came from the part of Davis’s opinion that explained
Congressional authority to create inferior courts. Chase interpreted the majority opinion
to mean that the military tribunal could not hear the case because Congress could not

1114
Ex Parte Milligan.

465
empower such a court. Chase agreed that Congress had not created such a court, but he
disagreed that they could not. “We think that Congress had power, though not exercised,
to authorize the military commission which was held in Indiana.” The Chief did not see
the Fourth, Fifth, or Sixth Amendments as impediments to creating military tribunals. He
believed that the government had the right to save itself in times of insurrection, and such
actions might have been necessary. Moreover, the power to declare war gave Congress
the means to win wars. It “extends to all legislation essential to the prosecution of war
with vigor and success.” But Chase qualified the argument: “We by no means assert that
Congress can establish and apply the laws of war where no war had been declared or
exists.” While Davis might have thought Indiana was a peaceful state, Chase saw it
otherwise. It was deemed a military district, hosted military operations, had been
invaded, and was constantly threatened with invasion. Throw in a secret society bent on
overthrowing the government through force of arms, and Indiana surely could have been
considered a military theatre. Therefore, Chase believed, Congress had the right to
remove civilian trials to military courts.
In fact, the Legislature did decide on the issue; “The fact that the Federal courts
were open was regarded by Congress as a sufficient reason for not exercising the power;
but that fact could not deprive Congress of the right to exercise it. It was for Congress to
determine the question of expediency. And Congress did determine it.” Regarding
Indiana, Congress had made no law establishing military courts. In this instance,
Milligan would have been free to take his trial to normal courts. Chase could imagine,

466
though, another time and place in which military commissions would be legal. One
passage summarizes the Chief’s opinion on the case:
Where peace exists the laws of peace must prevail. What we do maintain is, that
when the nation is involved in war, and some portions of the country are invaded,
and all are exposed to invasion, it is within the power of Congress to determine in
what states of districts such great and imminent public danger exists as justifies
the authorization of military tribunals for the trial of crimes and offenses against
the discipline or security of the army or against the public safety.
1115

Conclusion
The entire Supreme Court had agreed that as the law currently stood, military
courts could not hear cases where the regular courts were open. By the time Ex Parte
Milligan was handed down, the rebellion had been crushed, and all courts were re-
opened. Thus, as the law stood, military courts were unnecessary. This was a major
setback for the dominant coalition. Radicals/Moderates had based their Freedmen’s
Bureau and Civil Rights bills off the fact that sympathetic commissions would uphold
what they saw as not only the spirit of the laws, but the spirit of Reconstruction: black
civil rights. They must have been thoroughly disappointed when the Court struck down
this part of their program. And this was a Court staffed by Republicans no less! But
again, we need to remember that these were Lincolnians, appointed mainly because they
would help pursue a war-winning set of policies. These Justices were not chosen based
on their views of how to reconstruct the nation. Indeed, they seemed to align with their
appointer in that they wanted a quick return to the pre-war Union. Declaring military
tribunals unconstitutional was a way to pacify the South; if cases involving states’s

1115
Chief Justice Salmon P. Chase’s concurrence in Ex Parte Milligan 71 U.S. 2 (1866).

467
jurisdiction came, no doubt the Court would have said military courts can’t rule where
state courts were open. That would have devastated civil rights enforcement.
Milligan took down a major plank in the Radical/Moderate Reconstruction
platform. Its significance should not be minimized. Without military courts, regime
members did not believe they could accomplish their policy ends. During the days of
Presidential Reconstruction, when Congress fought Johnson so hard for control over the
South, the Court proved to be an unexpected obstacle. One scholar says that Johnson
would later use the case as justification for reducing occupation numbers.
1116
Another
writes, “In the context of the moment, the opinion came as a shock, a breach of the
comity between the Court and Congress. It gave warning that as Congress was about to
deal with intransigent Southern states supported by the president, it must reckon with an
unfriendly Court.”
1117
Indeed, the Court-Congress relationship further deteriorated. A
few months after Milligan, the Court handed down a pair of decisions that struck more
blows at the Radicals/Moderates.
Ex Parte Garland
Augustus Hill Garland had been a prominent lawyer before the Civil War. He
had even gained entry into the Supreme Court bar. When his native Arkansas broke for
the Confederacy, Garland followed suit. In the first years of the war, he represented
Arkansas in the lower house of the Confederate legislature. By the end of the war, he had
risen to the upper house. On January 24, 1865, Congress passed a law extending the

1116
Sullivan.

1117
Fairman, 237.

468
necessity of the ironclad oath to attorneys and counselors of the Courts of the United
States. Obviously, Garland could not conscientiously state, “I have not yielded a
voluntary support to any pretended government.” In July 1865, Garland received a
presidential pardon, which would go into effect as soon as he took an oath promising
allegiance to the United States and the Constitution. The pardon did not require Garland
to take the ironclad oath. This, he believed, gave him back his credentials to the Supreme
Court bar. Garland believed that the pardon overrode Congress’s ironclad requirement;
he argued the law was unconstitutional.
Reverdy Johnson, a prominent War Democrat respected by Republicans,
represented Garland. Johnson’s overall logic was: 1) Congress’s act did in fact
disfranchise Garland; 2) disfranchisement was a punishment; 3) the pardon absolved all
punishments; 4) the pardon overruled the necessity of the ironclad oath. Johnson’s
argument touched on many points. He said that the Constitution provided that judges
should hold office during good behavior. The law in question was just as wrong as
another that might dictate that no Supreme Court Justice over 40 years old could sit on
the Bench. A hypothetical 40-year-old restriction would have nothing to do with “good
behavior.” He then said that the Congressional act constituted an ex post facto law. He
gave another hypothetical. Suppose that assault and battery were punishable by a $50
fine, Johnson said. If a man today committed the crime, he would be tried and fined
accordingly. If tomorrow, Congress passed a law saying that assault-and-battery
offenders could not hold office, that man’s crime would not fall under the bill. He would
still be eligible to hold office because his crime came before the passage of the bill.

469
Johnson asked, “Is it not apparent that such act, in its practical operation, would be ex
post facto?” When Garland joined the rebellion, there was no law that stated he would be
banned from the Court. That law came only after he had committed his crime. Applying
the concept to the case at hand, he asked, “Does it not punish Mr. Garland for an act in a
manner in which he was not punishable when it was committed?” He further pointed out
a case from antebellum Alabama, where no lawyer could be admitted to the bar without
taking an oath that he would not, nor ever had, engaged in a duel. When brought to court,
the retrospective part of the oath was deemed unconstitutional.
Johnson said that the bill violated the part of the Fifth Amendment that read, no
person “shall be compelled, in any criminal case, to be a witness against himself.” First,
he made clear that this was a criminal case because it involved a charge for a crime. No
matter what the scope or nature of the crime, no defending party could be compelled to
testify. He pointed out, “The purpose is to prevent his being called upon to prove his
guilt; to prevent his being examined in relation to it against his will.” Johnson believed
that the law in question violated this clause because Garland’s admission that he could
not take the ironclad oath amounted to being a witness against himself. Johnson put it
clearly, “His refusal to swear that he is not guilty is made the evidence of his guilt, and
has the same operation as his admission of his guilt.”
Johnson proceeded, even if the Justices did not see the limitations of Congress,
surely they must rule in favor of the pardon. He recognized there was a tension between
the two branches, “The president is trying to pardon, and Congress to punish the
petitioner for the same offense; and the only question is, which power prevails over the

470
other?” Naturally, he believed the pardon prevailed. “The president has fully pardoned
him for this offense; and the Constitutional effect of that pardon is to restore him to all
his rights, civil and political, including the capacity or qualification to hold office.”
1118

Meanwhile, by disbarring the plaintiff, “the act accomplishes a result in direct opposition
to the Constitutional effect of the pardon.” He went further. Believing the pardoning
clause of the Constitution was “plain,” Johnson said that the pardoning of offenses meant
all offenses. He pointed out a number of court cases that supported his claim. In Ex
Parte Wells, Justice Wayne had said that the pardoning power of the president was the
same as that which had been exercised by the Crown of England. English legal theory
held, “The effect of a pardon is to make the offender a new man; to acquit him of all
corporal penalties…it gives him a new credit and capacity; and the pardon of treason or
felony, even after conviction or attainder, will enable a man to have an action of slander
for calling him a traitor.” Another leading British theorist believed that the pardon freed
the party from “the punishment, whether to imprisonment, pecuniary penalty, or whatever
else the law has provided.” He turned to cases involving individual states. A
Pennsylvanian case had declared, “Although the remission of the fine imposed would not
discharge the offender from all the consequences of his guilt, a full pardon of the offense
would.” In Massachusetts, Perkins v. Stevens declared, “It is only a full pardon of the
offense which can wipe away the infamy of the conviction, and restore the convict to his
civil rights.” In sum, “except in cases of impeachment…the power is unlimited.”

1118
emphasis added

471
Congress did not have the right to take away Garland’s livelihood, Johnson
protested. “Where does Congress get the power to disfranchise and disqualify any
citizen,” he asked. “A law requiring every public officer to swear that he voted for a
particular candidate at the last election, or leave his office, would be more wanton, but
not less Constitutional.” If Congress could require disfranchising oaths, then Congress
could also determine what to include in those oaths. Garland had a “vested right in his
office as an attorney” of the Supreme Court. The Legislature could not take that away
from him. He could be removed for cause, but that could only come through a judicial
judgment. Plus, the Judiciary Act of 1789 delegated the admission of counsel to the
courts. “Belonging exclusively to the courts, their judgment is conclusive,” Johnson said.
Depriving him office by an act of Congress deprived Garland of his property without due
process of law.
1119

Speed and Stanbery once again represented the United States. After referring to
Garland as a traitor who had no right to practice before the US Supreme Court, Speed
said that the Judiciary Act of 1789 gave the Court the right to prescribe an oath of office.
Indeed, the Court had instituted an oath. “Then if the Court could prescribe this old oath,
can it not prescribe another and different oath?” He recognized that it might be a
retroactive oath, but “every qualification is retroactive in one sense.” When a man
presents himself as qualified to practice law, is he not testifying to his past legal
education? If a man had committed a serious offense that the Court knew about, they
would not allow him admission to the bar. Speed asked, “Could he stand here today and

1119
Ex Parte Garland 71 U.S. 333 (1866).

472
contend that an exclusion on account of that offense would be retroactive?” He reasoned
that the power to require an oath included the power to modify it. Even if the Court
could not prescribe an oath, Congress could. Congress, in fact, had its hands in many of
the courts’s affairs. It could stipulate the number and make-up of the books that a lawyer
had to read and understand. Stanbery later added that Congress set the number of
Justices, gave the Justices a courtroom, added the title of Chief Justice, allowed the Court
to hold its term, required Justices to ride circuit, and provided the Court with a clerk.
Given these, of course Congress had the right to determine who could and who could not
argue in front of the Court. Whereas Speed said that the Court had the power to require
oaths of office, Stanbery said there was “just as clear a power in Congress to prescribe
oaths.” He then declared it good policy, and denounced opposing counsel’s argument:
What! Only exclude those who have not yet committed treason, and make them
swear that they will not commit treason; and have no power to exclude those who
have committed treason, and who come to demand as a right to practice here, with
the admission on their lips that they are traitors, and, if you please, mean to
continue traitors.

Table 84. Arguments in Ex Parte Garland.
Ex Post Facto? Pardon Fully Relieve Garland?
Speed & Stanbery No No
Johnson Yes Yes

Counsel pointed to a similar case that went through the California legal system.
California had passed a law stating that if a defendant in a court case had suspicions
about the loyalty of the plaintiff, the defendant could force the plaintiff to take an oath
“that he had not, since the passage of the act, aided or encouraged the Confederate States

473
in their rebellion, and that he would not do so in the future.”
1120
If the plaintiff refused to
take the oath, the suit would be dismissed. In addition, another provision required all
attorneys in the state to take the same oath. The Constitutional issue made its way to the
court, where the judge ruled that it was not a deprivation of rights nor a violation of due
process of law (which was guaranteed the California state constitution). The court ruled,
“California has the right to deny the use of her courts to those who have committed or
intended to commit treason against the nation.”
Speed and Stanbery also presented a number of examples that they believed
supported their contention. Speed pointed out former Justice Campbell, who had left his
post to join the rebellion. “Suppose he had not resigned; suppose that this judge had
come back here and demanded to take his seat on the Bench.” Speed inquired, “Could
you have received him in your conference-room either pardoned or unpardoned?…Will
the judges admit men to minister at the bar of justice, whom they would not admit like
men among themselves?” Stanbery asked the Justices to imagine a lawyer who had
committed perjury. Surely the Court would disbar that lawyer; and surely they would
maintain the disbarment even after a presidential pardon. Consider also a man who was
indicted and sentenced to life in prison. The law declared that his was civiliter mortuus—
dead in the estimation of the law. His wife would be released from the bonds of
matrimony, a widow, as it were, until she re-married. If the president pardoned the man,
“shall he have his wife?…Does this pardon divorce the newly-married parties, and annul
their marriage. Does it make the first husband just the man he was, and with all the rights

1120
Quoted in Ex Parte Garland.

474
he had when he committed the offense?” Stanbery said it did not, for “pardon is
forgiveness, but not necessarily restoration; it restores many things—not all things.”
1121

Opinion of the Court
The Court divided 5-4 in favor of Garland. The Democrats voted for Garland; the
Republicans for the State. Stephen Field, a Lincoln appointee, but Democrat nonetheless,
wrote the opinion. (The minority dissent also applied to Cummings v. Missouri. It is
described below after the description of the majority opinion in that case.) Field’s
opinion was uncommonly short. He believed that the original bill was directed at a
specific group and that it laid out a specific punishment. “The exaction of the oath is the
mode provided for ascertaining the parties upon whom the act is intended to operate, and
instead of lessening, increases its objectionable character.” Field said that the law was a
bill of attainder. He also called the punishment an ex post facto law. Obviously, it was
unconstitutional.
Moreover, “the profession of an attorney and counselor is not like an office
created by an act of Congress…[They] are not officers of the United States…They are
officers of the court, admitted as such by its order, upon evidence of their possessing
sufficient legal learning and fair private character.” While Congress could prescribe
qualifications for office, the admission or exclusion of lawyers to the bar is not a
legislative power; “it is the exercise of a judicial power.” One’s right to practice law
before a court could not be revoked simply “at the pleasure of the court, or at the

1121
Ex Parte Garland

475
command of the legislature. It is a right of which he can only be deprived by the
judgment of the court, for moral or professional delinquency.”
Finally, Field took on the pardoning power, saying that the power was unlimited,
“It extends to every offense known to the law…This power of the president is not subject
to legislative control. Congress can neither limit the effect of his pardon, nor exclude
from its exercise any class of offenders. The benign prerogative of mercy reposed in him
cannot be fettered by any legislative restrictions.” Field believed that a pardon erased
both the punishment and guild of the offender. When the pardon was full, it made it as if
the crime had never even been committed. Almost quoting Johnson, Field said, “It
makes him, as it were, a new man, and gives him a new credit and capacity.” In what
must have been a response to the Justice Campbell argument, Field then took a moment
to qualify his own argument, saying that a pardon could not restore a man to a forfeited
office. He concluded:
The effect of this pardon is to relieve the petitioner from all penalties and
disabilities attached to the offense of treason, committed by his participation in
the Rebellion. So far as that offense is concerned, he is thus placed beyond the
reach of punishment of any kind. But to exclude him, by reason of that offense,
from continuing in the enjoyment of a previously acquired right, is to enforce a
punishment for that offense notwithstanding the pardon. If such exclusion can be
effected by the exaction of an expurgatory oath covering the offense, the pardon
may be avoided, and that accomplished indirectly which cannot be reached by
direct legislation. It is not within the Constitutional power of Congress thus to
inflict punishment beyond the reach of executive clemency.
1122

Cummings v. Missouri
In spring 1865, Missouri adopted a new state constitution. Among its provisions,
it required all clergymen of any religious sect to take an oath of loyalty. Without taking

1122
Ex Parte Garland.

476
the oath, they could not teach, preach, or solemnize marriages. The oath required its
taker to swear he had “always been truly and loyally on the side of the United States,”
and had never, directly or indirectly, done anything to help the Confederacy. If one did
not take the oath but still practiced religious duties, he was liable to be punished with a
minimum $500 fine and/or six months in prison. If he took the oath and was later found
guilty of perjury, the imprisonment was raised to two years. In September 1865,
Reverend Cummings, a Catholic priest, was indicted and convicted of teaching and
preaching without having taken the oath. He was sentenced to pay $500 and to serve jail
time until the fine was paid. The case made its way to the Supremes, where the Court
decided, under the same 5-4 split as in Ex Parte Garland, that Missouri’s required oath
was unconstitutional.
David Dudley Field—brother of Supreme Court Justice Stephen Field—presented
the argument for Cummings. He started by claiming that the oath required by Missouri
necessitated disloyalty to the United States. First off, it was not even an oath of loyalty to
the US, but to the state. D.D. Field said that the amount to: “I hereby declare, on oath,
that I have never been in armed hostility to the government of the state of Missouri, nor
given aid, comfort, countenance, or support to persons engaged in any such hostility.” In
the early days of the Civil War, the government of Missouri had been hostile towards the
US government. Although Missouri came around and was considered a Northern state,
its allegiance was questionable throughout the war. To claim that one had been hostile to
the state might have actually indicated loyalty to the US, and vice versa. Counsel
provided an interesting corollary: “If the legislature of South Carolina were to pass a law

477
excluding from the pulpit…every person who has been, at any time during the late war,
‘connecting with any organization inimical to the government’ of South Carolina, that
law would be held disloyal and unconstitutional.” D.D. Field pointed out that if such an
oath were required in Tennessee, Andrew Johnson would not be able to take it.
Counsel claimed the state constitution violated numerous parts of the US
Constitution. These arguments were identical to those made in Ex Parte Garland. D.D.
Field said the oath violated the part of the Fifth Amendment that said no person should
have to be a witness against himself. He defined an ex post facto law as one that
“rendered an act punishable in a manner in which it was not punishable when it was
committed.” The only question, then, was whether or not the state had punished
Cummings. D.D. Field said that the deprivation of his right to preach and teach
Christianity “was in effect a punishment.” In addition, “the imposition of this oath
was…intended as a punishment.” D.D. Field said that helping wounded rebels or giving
them words of consolation should not take away Cummings’s right to grant marriages or
teach the Bible. By punishing Cummings for a crime that was not defined when he
committed it, the state had imposed an ex post facto law.
In addition, it was also a bill of attainder. D.D. Field said that the term included
legislative acts targeted at specific individuals (or groups of individuals), as well as acts
that inflicted punishment without a judicial trial. If Cummings had been mentioned by
name in the state constitution, then that certainly would have constituted a bill of
attainder. By excluding names and including classes of persons, the constitution still
violated the Constitution. D.D. Field asked, “Of what avail will be the prohibition [of

478
bills of attainder], if it can be evaded by changing a few forms?” Moreover, he seemed to
be considered guilty just by the result of not taking the oath. He never went to trial. He
was never convicted. The decision not to take the oath was not an admission of guilt. “If
Mr. Cummings had even admitted in the presences of the convention his alleged
complicity,” counsel said, “that would not have dispensed with a judicial trial.” It was as
if saying a man tried for treason, and acquitted by a jury, would then have to take an oath
that he is innocent, lest he be deprived of political and civil rights.
1123

G.P. Strong and J.B. Henderson represented the state of Missouri. Ironically, both
claimed that it was a states rights issue, and that Missouri had the right to whatever she
saw fit in qualifying her citizens for certain posts. Strong maintained, “Among the
reserved rights to the states…[is] the terms and conditions upon which members of the
political body may exercise their various callings and pursuits within its jurisdiction.”
Henderson even quoted the Tenth Amendment, then said, “No question, therefore, can
arise as to the power of the people of Missouri to adopt the provisions in question unless
they fall within the powers delegated to the United States, or are prohibited to the states.”
Clearly, Henderson proclaimed, these were issues belonging to the states.
Both also claimed that the constitutional provisions were neither bills of attainder nor ex
post facto laws. Strong claimed that both kinds of illegal bills applied only to criminal
procedures, and the case before the Court was definitely not criminal in nature.
Henderson claimed, “a bill of attainder assumes the guilt and punishes the offender,
whatever he may do to escape [the punishment].” But in this case, the offender could

1123
Cummings v. Missouri 71 U.S. 277 (1867).

479
escape the punishment by taking an oath. Additionally, it did not single out a certain
class of citizens, but applied to the entire community. “If any objection really exist…”
Henderson reasoned, “it is because they are retrospective in their operation.” He pointed
out the Supreme Court case Watson et al. v. Mercer, in which the Court declared, “The
phrase ex post facto, is not applicable to civil laws, but to penal and criminal laws, which
punish a party for acts antecedently done, which were not punishable at all, or not
punishable to the extent or in the manner prescribed.” But Henderson claimed that the
state constitution did not “operate on the past…It looks only to the future.” Seeming
somewhat dubious since the law did, in fact, operate on someone’s past actions,
Henderson qualified the statement, “If it refers to the past at all, it is only for the purpose
of ascertaining moral character and fitness for the discharge of high civil duties, which
give credit and influence in the community, and can never be safely entrusted in the
hands of base or incompetent men.”
The state responded to some of D.D. Field’s claims. Strong disputed that the oath
only applied to allegiance to the state of Missouri. He deducted, “The Constitution of the
United States is apart of the government of the state. It is as much the Constitution of the
people of Missouri as the state constitution. Those who defended the one defended the
other.” The provision could not violate the Fifth Amendment’s Due Process Clause
because it did not deprive one of his right to life, liberty, and property; regarding
property, Henderson believed “the right to pursue his profession is not such an absolute
right of property.” In addition, it did not violate the Amendment’s clause against
testifying against oneself. Counsel said that the “refusal to take it [the oath] is not a

480
conviction, nor does it tend to a conviction.” In fact, “the taking of the oath is not an
acquittal.” In sum, the oath had nothing to do with past actions and past offenses; and
therefore, it had nothing to do with testifying, either way, to innocence or guilt.
Reverdy Johnson rebutted the state’s oral argument. He mainly stuck to the call
of ex post facto. He started by saying the provision was so sacred that the framers did not
just limit it to federal restriction of passing ex post facto bills, but also to states doing the
same. In fact, the Constitution did not just prohibit legislatures from doing it, but that
“no state”—including state legislatures, governors, courts, and constitutions—could
impose ex post facto laws. Missouri’s constitutional provision assumed that society was
not secure “by such punishment as the previous law provided.” So she passed a law that
applied to previous crimes, a clear violation of ex post facto. “But that is not all,”
Johnson stated. It also changed the way in which evidence was to be established.
Previously, it took two witnesses to convict one of treason. Now, it took an oath.
Johnson claimed that Missouri’s stance was: “Unless you will swear that you have not
committed the offense…we find you guilty…We make the fact of your refusing to swear
that you are innocent conclusive evidence of your guild, and punish you accordingly.”
1124

Opinion of the Court
Once again, Stephen Field wrote the majority opinion. He started by saying that
the oath itself was full of problems. It was retrospective, directed against desires &
sympathies (and not just overt & visible acts of insurrection), and allowed “no distinction
between acts springing from malignant enmity and acts which may have been prompted

1124
Cummings v. Missouri 71 U.S. 277 (1867).

481
by charity.” He believed that the whole thing was designed to punish rebel sympathizers.
The state did not employ the oath as a means of ascertaining whether certain individuals
were qualified to be clergymen. “It was required in order to reach the person, not the
calling,” Field wrote. “It was enacted…because it was thought that the several acts
deserved punishment, and that for many of them there was no way to inflict punishment
except by depriving the parties, who had committed them, of some of the rights and
privileges of the citizen.” Thus, Field declared that the prohibitions did constitute a
punishment, and he did not agree with Missouri’s contention that it did not constitute
deprivation of life, liberty, or property. Namely, Field touched on the “inalienable right”
to the pursuit of happiness. By disallowing Cummings to pursue his career path, the state
had infringed on that right.
Justice Field then took on bills of attainder and ex post facto laws. He defined a
bill of attainder as “a legislative act which inflicts punishment without a judicial trial.” In
addition, “these bills are generally directed against individuals by name; but they may be
directed against a whole class.” And finally, “these bills may inflict punishment
absolutely, or may inflict it conditionally.” By defining bill of attainder as such, Field
made the Missouri provisions unconstitutional in three senses. First, a man was
condemned simply by not taking the oath—he never appeared before a judge and pled his
case. Secondly, the bill was directed at rebel sympathizing clergymen—a specific class
of citizens. Field stated that if Missouri had stipulated that Cummings was guilty, and
therefore stripped of his rights, because he had opposed the US, “there could be no
question that the clauses would constitute a bill of attainder.” If Missouri called out all

482
priests, “they would be no less within the inhibition of the Federal Constitution.” Third,
as he had already mentioned, it did inflict punishment—depriving Cummings of his
calling.
Almost quoting his brother, the Associate Justice defined ex post facto law as
“one which imposes a punishment for an act which was not punishable at the time it was
committed; or imposes additional punishment to that then prescribed; or changes the rules
of evidence by which less or different testimony is sufficient to convict than was then
required.” Again, following the definition he laid out, Field found much wrong with
Missouri’s constitution. First off, they were “aimed at past acts, and not future acts.”
They aimed to punish those who had sympathized with the rebellion by stripping them of
their religious titles. And make no mistake, Field said, “This deprivation is punishment.”
The existence of an oath did not give them a way out, either. He wrote,
The framers of the constitution of Missouri knew at the time that whole classes of
individuals would be unable to take the oath prescribed. To them there is no
escape provided; to them the deprivation was intended to be, and is, absolute and
perpetual. To make the enjoyment of a right dependent upon an impossible
condition is equivalent to an absolute denial of the right under any condition, and
such denial, enforced for a past act, is nothing less than punishment impost for
that act. It is a misapplication of terms to call it anything else.

He continued by saying that some of the acts to which the oath was directed were
not offenses at the time they were committed. Others might have been, but had had
harsher penalties imposed since the time they were committed. “And this is not all,”
Field continued. The provisions of the Missouri state constitution assumed the guilt of
certain persons; “the clauses in question subvert the presumptions of innocence…they
declare that such innocence can be shown only in one way—by an inquisition, in the

483
form of an expurgatory oath, into the consciences of the parties.” There was no judicial
proceeding. The state government completely changed the way it prosecuted accusations
of treason. Field remanded the case back to the supreme court of Missouri, with
instructions to reverse their earlier decision that had upheld the state constitution.
1125

Miller’s Dissent
Justice Samuel Miller penned a single dissent for both cases, which the Chief, and
Justices Swayne & Davis signed onto. From the very beginning of the opinion, Miller
expressed concern about allowing former rebels into places of influence. “The right…to
exclude from offices and places of high public trust…those among its own citizens who
have been engaged in a recent effort to destroy the government by force, can never cease
to be [a question] of profound interest.” Although Miller went into a legal and procedural
defense, the fact that he opened with these words might point to the fact that he was
simply concerned with rebels running the country.
He looked at both sets of professionals. Only briefly touching on clergymen in
Missouri, he seemed to see the issue in democratic terms. The people of Missouri passed
a state constitution which forced priests to take the oath. Though Miller did not say it
outright, his opinion reads like one advocating judicial restraint: “This court now holds
this constitutional provision void, on the ground that the federal Constitution forbids it. I
leave the two cases to speak for themselves.” Regarding attorneys, he had quite a bit
more to say himself. He said the right to practice law was a privilege, not an absolute
right, and that candidates were often deprived of the privilege “upon evidence of bad

1125
Cummings v. Missouri 71 U.S. 277 (1867).

484
moral character, or specific acts of immorality or dishonesty, which show that they no
longer possess the requisite qualifications.” Besides, Miller contended, it was up to
Congress to deal with the administration of the Court. He wrote, “Having the power to
establish the courts, to provide for and regulate the practice in those courts, to create their
officers, and prescribe their functions, can it be doubted that Congress has the full right to
prescribe terms for the admission, rejection, and expulsion of attorneys?”
The oath required of those who wished to enter the Supreme Court bar was no
different from the one required of every officer of the government, civil or military. It
had two parts, “one which looks to the past conduct of the party, and one to his future
conduct…In substance, he is required to swear that he has not been guilty of treason to
that government in the past, and that he will bear faithful allegiance to it in the future.”
Miller believed that a “sincere desire” for the preservation of the government was among
the “most essential qualifications which should be required in a lawyer.” At the very
least, Miller reminded, we should keep in mind that the country’s judges were taken from
that very pool of lawyers. Did we really want insurrectionist judges presiding over cases
involving laws that they themselves repudiated? “I venture to affirm,” he said, “that if all
the members of the legal profession in the states lately in insurrection had possessed the
qualification of a loyal and faithful allegiance to the government, we should have been
spared the horrors of that rebellion.” He believed that the statute forcing lawyers to take
an oath had taken such matters into consideration.
Miller addressed the two most pressing Constitutional matters, the bill of attainder
and ex post facto claims. He was not aware of any judicial decision that had defined the

485
former. He laid out the elements of a bill of attainder: 1) they were convictions and
sentences pronounced by the Legislature, not the Judiciary; 2) the sentence was
determined by no previous law; and 3) the investigation, if any, was not conducted in the
presence of the accused, and not recognized rules governed the inquiry. Miller did not
believe that the Congressional bill or the Missouri state constitution violated any of the
three provisions. Furthermore, “no person is pointed out.” To say that it was pointed at a
certain class of individuals (i.e., rebels) would be “manifestly incorrect, as the oath is
exacted alike from the loyal and disloyal, under the same circumstances, and none are
compelled to take it.” He concluded, “A statute, then, which designates no criminal,
either by name or description—which declares no guilt, pronounces no sentence, and
inflicts no punishment—can in no sense be called a bill of attainder.”
Moving on to ex post facto accusations, Miller defined the terms using the case
Henderson had pointed out during oral arguments in Cummings v. Missouri. Quoting
Joseph Story’s opinion in Watson v. Mercer, he wrote, “Ex post facto laws relate to penal
and criminal proceedings, which impose punishment and forfeiture, and not to civil
proceedings, which affect private rights retrospectively.”
1126
There were no criminal
characteristics about either of the oaths. In fact, the only possible criminal aspect was
prosecuting those who falsely took the oath, but that was prospective, not ex post facto.
“It is in all other respects a civil proceeding…If it is not a criminal proceeding, then…it
is not an ex post facto law.” Additionally, one was only asked to take an oath. There was

1126
Quoted in Miller’s dissent in Ex Parte Garland.

486
no assumption of guilt. His refusal to take it would not subject him to prosecution. And
his taking it did not clear him of any guilt or acquit him of any charge.
“The fatal vice in the reasoning of the majority is in the meaning which they
attach to the word punishment,” Miller wrote. He believed the majority used it in a
“loose sense” to mean “chastisement, correction, loss, or suffering.” The legal sense,
though, signified “a penalty inflicted for the commission of crime.” He quoted
Wharton’s Law Lexicon, which read, “Punishment is the penalty for transgressing the
laws.”

Since “the law in question does not in reality deprive a person guilty of the acts
therein described of any right which he possessed before,” it could not be considered a
legal punishment. What law had been transgressed? “None is referred to in the act,” he
answered. Indeed, Miller believed, the guilty did not even have to go before a court to
receive their due punishment! He maintained the acts were meant to require loyalty as a
qualification, not to impose punishment for past acts of disloyalty. He reasoned, “In
pressing this argument it is contended by the majority that no requirement can be justly
said to be a qualification which is not attainable by all, and that to demand a qualification
not attainable by all is a punishment.” Using that logic, Miller reasoned, was it a
punishment that the president had to be native-born?
Finally, if one accepted that the laws involved no punishment, then one also did
away with any argument regarding a presidential pardon. Miller conceded that a pardon
relieved a party from all penalties and punishments; “but it relieves him from nothing
more.” If a required oath was a condition for practicing law or religion, then it was not a
punishment, and could not be overcome by the president’s signature. Miller declared,

487
“The man who, by counterfeiting, by theft, by murder, or by treason, is rendered unfit to
exercise the functions of an attorney or counselor-at-law, may be saved by the executive
pardon from the penitentiary or the gallows, but is not thereby restored to the
qualifications which are essential to admission to the bar.”
1127

More Test Oath Cases
A trio of cases made their way through state judicial processes and arrived at the
Supreme Court. Each involved issues of loyalty oaths, and presented oral arguments
before the Court, starting in December 1867. A few months earlier, Justice Wayne had
died, bringing the 5-4 majority back to a tie. Congress had decreased the number of
Justices, so as to prevent Andrew Johnson from nominating his own judges. Later on,
they would increase the number of Justices so that President Grant could pack the Court
with Republicans. But from 1867-1870, the Court only had eight members, who split
down the middle on loyalty oaths. Because neither side could muster a majority, the
Court disposed of the cases, “inconclusively and inconspicuously.”
1128
Although the
Court never released a decision in any of the three cases, their state-level decisions give
us insight into the general tenor of the day regarding Ex Parte Garland and Cummings v.
Missouri. They show that state judges in the South disagreed with Field’s two majority
opinions.
Missouri’s state constitution required all voters to take the ironclad oath. Fresh
off marching to the sea with Sherman, Francis P. Blair returned home to Missouri to vote

1127
Justice Samuel Miller’s dissent in Cummings v. Missouri 71 U.S. 277 (1867).

1128
Fairman, 614.

488
in a set of November 1865 elections. He refused to take the oath, though, because he felt
he cold not swear that he had “been in armed hostility…to the government of this state,”
inasmuch as he had fought against the pro-Confederate governor at the start of the war.
In reality, Blair brought suit so that he could have a forum to challenge Missouri Senator
Charles D. Drake. At the end of the Civil War, the two bitterly disagreed on where the
state should stand on reconstruction. Drake had written the loyalty oath into the Missouri
state constitution; and this was Blair’s way of challenging it. Before the Supreme Court
of the United States, Drake said Blair’s “refusal…to take the oath was owing to his own
perverse and obstinate will.”
1129
Drake also pointed out that Blair hadn’t contested the
oath when he took it to vote in the presidential election. Blair’s counsel—his brother
Montgomery Blair—replied that he had taken the oath under protest. Frank Blair brought
suit against the judges of the election booth, claiming damages in the sum of $10,000.
The supreme court of Missouri ruled against Blair. Instead of addressing his issue
of not voting because of a technicality, the court’s opinion touches on the substantive
issue of loyalty oaths as a prerequisite for voting. Interestingly, the opinion does not talk
much about ex post facto laws or bills of attainder. Both “have been so much discussed
of late, in connection with acts springing out of the troubles through which the country
has just passed, that it is unnecessary to enter upon an argument concerning their nature
and character.” The judges did, however, consider whether or not voting was a natural
right. If so, then stripping the ballot from citizens would be an undue penalty. The
judges admitted that the right to life, liberty, and property were carefully guarded natural

1129
Fairman, 615

489
rights. The decision turned to Cummings, where Justice Field’s majority opinion
included liberties that could not be inhibited—the right to vote was not one of them. “We
are not aware that it has ever been held or adjudged to be a vested interest in any
individual.” In fact, the Constitution gave the states the power to restrict the ballot from
their respective citizens. “Of their perfect and exclusive right to do this,” the judges
announced, “we do not entertain the slightest doubt. The right to vote…may be enlarged
or restricted, granted or withheld, at pleasure, and with or without fault.” Granted, this
had implications for black suffrage, but the judges recognized this, saying that denying
blacks the ballot simply meant that state legislatures thought the freedmen unready for
the responsibility of voting, just as the lawmakers “considered that those who had
betrayed our flag, and exhibited their hostility to the government, were, for the time
being, unsafe and unfit repositories of political power.”
1130

The same set of judges called upon Blair v. Ridgely in their decision in Wingate v.
Woodson. Missouri’s Attorney General sued for Henry N. Cook, who believed that he
was rightfully entitled to the elected position of clerk of the Boone County court. Cook
admitted that he had not received the most votes in the election, but that the professed
winner, Warren Woodson, was incapable of taking the ironclad oath because Woodson
had sympathized with rebels. Woodson, of course, claimed the oath was an ex post fact
law and a bill of attainder. The majority opinion in Wingate v. Woodson addressed the
concerns: “In the case of Blair v. Ridgeley, the question as to whether this provision of
the state constitution is in conflict with the Constitution of the United States was fully

1130
Blair v. Ridgely 41 Mo. 63 (1867).

490
considered and determined by this court…It will not be necessary therefore to discuss it
now.” The majority also found that Woodson was unable to take the oath. Now,
Missouri law said that if one served in the US military, then he could be cleared of
disloyalty charges. Woodson said he had served in the state’s Unionist militia. Alas, the
majority felt that was not good enough. They wrote, “There can be no misunderstanding
about the meaning of these words. They exclude the idea of any other kind of service
except that performed by a military force regularly sworn and mustered into the service
of the United States.
1131

Just like Blair v. Ridgeley, the Missouri supreme court ruled in favor of the
loyalty oath. Since the oath was legal, and Woodson could not take it, he also could not
take his seat as clerk; his militia service could not save him either. Unlike Blair, Wingate
v. Woodson included a dissenting opinion. While not disputing the oath, Judge Holmes
argued that the supreme court had overlooked the facts of the dispute. He explained that
Woodson had a son and other family in the Confederate government, and he
“sympathized” with those relatives. Holmes wrote, “The word ‘sympathy’ was evidently
not used here in its most general sense: it means something more than mere feeling.” It
should have been “understood to import some conduct of a treasonable nature…and not
merely a feeling of sympathy for their [his family’s] sufferings or of interest in their
welfare.” In addition, Holmes felt that Woodson’s service in the state militia, which had

1131
Wingate v. Woodson 41 Mo. 227 (1867).

491
been called to put down guerillas in the name of the United States, qualified him for
exoneration of any such charges of disloyalty.
1132

Similar to Blair, the final case dealt with voting rights in Tennessee. During the
Civil War, the pre-war loyalist government had been run out of the state. A band of
loyalists met to institute a new government. They drew up certain amendments to the old
state constitution, held an election, and passed them. Military governor Andrew Johnson,
by the authority of President Lincoln, declared the amendments to have been adopted by
the people of the state. One of the amendments provided for the state legislature to limit
the franchise. Employing this power, the legislature restricted the ballot from those who
had opposed the United States. The supreme court of Tennessee upheld the restriction,
saying, “The elective franchise is not an inalienable right or privilege, but a political
right, conferred, limited, or withheld, at the pleasure of the people…Each state may
define it in its own constitution, or empower its legislature to do so.” The court ruled that
taking away the right to vote did not violate any liberties, qualify as a bill of attainder, or
impose penalties on any citizen. Furthermore, while a pardon “restored [one] to the
rights and privileges of a citizen of the United States…it did not have the effect, without
the assent of the state…to restore him to the exercise of those [political] rights.”
1133

Again, all of these cases moved beyond the Missouri supreme court and the
Tennessee supreme court. They all came to Washington, with oral arguments presented
for each one. The deadlock between the Justices, though, resulted in a decision to make
no decision. And while the winds were certainly shifting in favor of the Republicans, the

1132
Judge Holmes’s dissent in Wingate v. Woodson 41 Mo. 227 (1867).
1133
Ridley v. Sherbrook 43 Tenn. 569 (1866).

492
Court still resisted efforts to help the regime. At the very least, the three cases indicate
that there was a decent amount of lower court resistance to the philosophical
underpinnings of Ex Parte Garland and Cummings v. Missouri.
Other Court Cases Involving Oaths
The Missouri and Tennessee cases dealt with issues that differed slightly from the
two Supreme Court cases. Blair v. Ridgely and Ridley v. Sherbrook involved voting
rights; Wingate v. Woodson involved elected officers. Though all three dealt with loyalty
oaths, none of them dealt with oaths towards practicing lawyers or clergymen. A couple
of other cases, though, did engage one of the issues the High Court had spoken on
(attorneys). Those cases did not ever make it to the US Supreme Court, but again, their
seeming dissent from Field’s two opinions demonstrates that the Court’s decisions were
not in line with the rest of the polity.
Like A.H. Garland, Andrew Hunter had been a bar-admitted attorney at the
outbreak of the Civil War. As a member of Virginia’s state lower and upper legislative
houses, he had taken an oath of allegiance to the Confederacy. During the war, West
Virginia had broken off from Virginia, and established its own judicial system. West
Virginia had prescribed that unless its state legislature or state constitution said
otherwise, the old laws of Virginia would stay in effect. Hunter claimed that that
provision entitled him admission to the West Virginia bar. In the meantime, West
Virginia law banned rebels from serving at the bar. The Supreme Court of Appeals of
West Virginia agreed with the state. Both judges who sat during the trial, Judge Brown
and Judge Loomis, wrote opinions. Some of their substance overlaps.

493
Both judges agreed that the real matter at hand was whether or not rebels could be
trusted. Both strongly denounced the secessionists. Brown wrote, “The applicants were
in rebellion, and public enemies in a pending war, repudiating all obligations and
allegiance to the United States and to this state, and…they claimed allegiance and yielded
a voluntary, if not a zealous support, to the rebel governments.”
1134
Loomis went on a bit
longer:
I hold it also to be clear, beyond dispute, that as it is a paramount duty of the
legislature to watch the bearings of the rebellion…so it is the duty of courts, and
more especially of this court—as that of final judgment—in its sphere to assist the
legislature…I am not at liberty, either as a good citizen or as a faithful judge to
exclude from consideration the patent fact, that…[Hunter] was an earnest
participator in, and an abettor of, the rebellion; that the rebellion was treason in its
worst and least mitigated form; that they sinned against the light; not led astray
themselves, but leading others astray, that deliberately and with a full estimate of
chances, they staked their private interests upon the result; that their aim was the
destruction of the Union, involving, of necessity, the destruction of each of its
parts; that they invited and accepted the risks which they voluntarily
incurred…Nor am I at liberty to exclude from view the other fact that the state
and the loyal people have their rights involved in the matter; and that a law passed
for their protection against a great and threatening evil, creates presumptions in its
favor…From our knowledge of events so recent, can it be doubted, that if, at any
period, from the beginning to the close of the war, the influence of this class could
have been suddenly destroyed, that from that instant the prestige of the rebellion
would have vanished? I do not hesitate to say that the rebel ship of state, deprived
of this element, would have been…powerless for harm.

Both judges also denied that the case involved an ex post facto law, or a breach of
contract. Loomis failed to see anything in the law that contemplated a punishment for
past acts. He said it did not make nor declare any crime greater than it was before the
passage of the law, and it did not inflict a greater punishment or alter the rules of
evidence. “Therefore,” he wrote, “in no proper legal sense can the law be regarded as ex

1134
Judge Brown’s opinion in Ex Parte Hunter 2 W. Va. 122 (1867).

494
post facto.”
1135
Judge Brown said it did not impair the obligation of an existing contract.
It also did not was not an ex post facto law. For either to be true, rebels would have been
allowed into the state’s courts. “To have done so would have been to place the courts at
the mercy of the foe, and given double aid and comfort to the enemy…Such an objection
[could not] have been sustained, upon any principle of law and reason.” He was led to
the conclusion that the law “is neither ex post facto, nor does it impair the obligation of
any contract.”
Moreover, the law did not deprive Hunter of his privilege as an attorney. An
attorney did not hold a regular job, he “is an officer of the court…All these privileges and
immunities are conferred by the law for the public good, and are, therefore, held and
enjoyed in subordination to the public control.” It had been a regular custom for lawyers
to take oaths before taking their place at the bar, and West Virginia had every right to
continue that tradition, even if the oath seemed more stringent than in the past. Brown
added that no presidential pardon could get Hunter back his job either. He wrote, “While
the president’s pardon might restore the party to all the rights and privileges which he
held or derived under the government which conferred the pardon, it would hardly, I
imagine, be seriously contended that the effect of such a pardon could be extended
further.” He explained that a pardon might restore federal privileges, but it did not confer
rights that had exercised under state laws. Loomis agreed, “The pardoning power of the

1135
Judge Loomis’s opinion in Ex Parte Hunter 2 W. Va. 122 (1867).

495
president is confined to offenses against the United States, as he represents that
government alone. Nor does he attempt to beyond this limit.”
1136

A month after Garland was handed down, Allen B. Magruder claimed that he had
the right to practice law in the courts of Washington, D.C. The case made its way to the
supreme court of the District of Columbia, where chief justice David Cartter presided.
Cartter was a political lieutenant of Ben Wade. Former Attorney General (under Lincoln)
Edward Bates called Cartter “a fierce partisan, an inbred vulgarian, and a truculent
ignoramus.”
1137
Both Cartter and Judge Wylie wrote similar opinions in the case. For his
part, Magruder admitted that he had borne arms against the United States during the Civil
War. However, he “indignantly repelled the imputation that he had violated his oath to
support the Constitution.” Wylie repeats Magruder’s logic:
He regarded himself as under ‘duality of allegiance;’ that his first and paramount
allegiance was due to his native state [Virginia], and his secondary and
subordinate allegiance was due to the United States; and that it was in this belief,
honestly entertained, he went into the rebellion in obedience to the call of his
state, although he was himself of the opinion that the rebellion was without any
just cause.

Wylie called it a “fanciful theory.”
1138
Cartter called it an “absurdity” because it
assumed that “a part is greater than the whole.” Both judges relied on the “can’t trust
rebels” argument. Cartter said Magruder was an “officer in the rebel army, doubtless, as
such, binding himself under oath to do all in his power to destroy this government.” The
oath was provided to protect “the morale of the bar and the integrity of the government.”

1136
Ex Parte Hunter.

1137
Quoted in Fairman, 246.

1138
Judge Wylie’s opinion in Ex Parte Magruder, The American Law Register Vol. 15, No. 5 (March
1867): 292-329.

496
Surely that did not include insurrectionists like Magruder. (Following that logic, the
judge found that the exclusion of a certain class of lawyers could not be a punishment. It
was just a particular criterion. Therefore no additional penalty had been prescribed, and
therefore it was not an ex post facto law.)
1139
Wylie pointed out the specific trouble the
Capital faced during the war. He explained, “We were in the midst of a terrible civil war;
surrounded by a large population, many of whom were, in sentiment at least, disloyal to
the government… Treason walked our very streets defiantly and encouraged its partisans
amongst us with the promise of a speedy triumph of the rebellion…Its Constitutionality
was not then called in question, nor was its propriety doubted.”
Both judges felt that their court had the right to control its own regulations. They
both pointed out that each court had its own vested right to regulate itself. Wylie
declared that the supreme court of the District of Columbia itself was the ultimate judge
of which lawyers would be admitted to its chambers. Cartter agreed, “The inherent right
of each court to regulate its own rules of practice, including the terms of admission of
attorneys to and dismissions from the bar, has come down to us unquestioned through the
long life of the common law.” Besides, Garland had not come down as a mandate to
other courts. It was merely “advisory.” In fact, even though Ex Parte Garland seemed to
rule on the same exact issue, both judges felt it dealt with a substantively different issue.
Did Other Judges Listen to the US Supreme Court?
Cartter and Wylie were the first to twist the Court’s words and/or seemingly
denounce the US Supreme Court’s opinions in Ex Parte Garland and Cummings v.

1139
Judge Cartter’s opinion in Ex Parte Magruder, The American Law Register Vol. 15, No. 5 (March
1867): 292-329.

497
Missouri. Cartter said he understood Magruder’s line of defense that claimed the
Supreme Court had determined the unconstitutionality of depriving lawyers of access to
the bar. He understood it; he just disagreed with it: “Up to the time of the publication of
the recent opinion of the majority of the Supreme Court, this court, from the time of the
adoption of the rule, has entertained no doubt of its Constitutionality, or of its propriety
and necessity. The only doubt now existing in this regard has been raised by the
expression of the opinion of that Court.” Additionally, Cartter believed Magruder’s
claim was different from Garland’s in that Garland had already been admitted to the
Supreme Court bar (before the war). Magruder had never been admitted to the D.C. bar.
Therefore, any presidential pardon Magruder might receive would not entitle him to
privilege he never had in the first place.

Wylie agreed, saying that Garland had “been
already admitted to the bar” and had “received perfect absolution for his offenses.”
Based on those two factors, Wylie believed, Field had said he could take its place at the
Court’s bar. “Our rule applies only to persons not yet admitted to the bar, and who,
therefore, possess no ‘previously acquired right.’…The rule of the Supreme Court was
different from ours…The fatal objection to his admission to our bar is that he is now only
applying for admission for the first time.”
1140

Both judges in Ex Parte Hunter denied that the Supreme Court’s decision in
Garland instructed them on how to adjudicate their case. Judge Brown almost admitted
the contradiction,
It has been said in the argument that the Supreme Court of the United States has
decided this question, and arrived at a conclusion different from that to which I

1140
Ex Parte Magruder.

498
have come…While I entertain for that [Supreme] court a high respect, and in all
cases where its decision shall be obligatory on this court, I shall bow to its
mandate and wait for the wisdom and good sense of the people to correct the
error, if I think it wrong; yet, where not so obligatory, I shall exercise the judicial
powers vested in me by the people of West Virginia, and pronounce the law as I
understand it to be.

Meanwhile, Judge Loomis claimed to have waited to write his opinion in Hunter
until he read the Garland decision. He concluded, “After a careful examination of that
decision [Garland] as furnished, I am constrained to adhere to the opinion already
advanced.”
1141

The Missouri state supreme court noted that the US Supreme Court had
overturned it once already. But they concentrated on Miller’s dissent, “an opinion which
for ability, logic, and admirable juridical criticism has rarely been excelled even in that
august tribunal.” Judge Warner said that he would grudgingly follow Cummings v.
Missouri’s precedent if Blair v. Ridgely had presented the same facts. But Cummings
only applied to “preachers and ministers of the Gospel.” Now, “it is true,” Warner wrote,
“Judge Field…speaks of other pursuits, professions, and trusts…and condemns them all
as liable to the same objection.” But still, it had nothing to do with voting. Field had
written that the ability to pursue a profession was a natural right. The ability to vote was
not.
1142
Shackelford presented a similar logic in Ridley v. Sherbrook. He said he had
examined the two cases, and concluded that the Court had held that a state could not
deprive a man of the right to his labor, either physically or intellectually. But “these are
civil rights, and inalienable…a political right stands upon a very different principle; it is a

1141
Ex Parte Hunter.

1142
Blair v. Ridgely.

499
political privilege or grant, that may be extended or recalled, at the will of the sovereign
power.”
1143

Perhaps the most telling indication that judges disagreed with the Supreme Court
majority comes in the fact that Holmes’s dissent in Wingate v. Woodson did not even
mention it. One would think that a lower court judge who had the Supreme Court on his
side would use that to his advantage. Instead, Holmes relied on a different interpretation
of the word “sympathy,” and a different view of serving in the US military. Since he
failed to take issue with the backbone of the majority opinion in Wingate, we can safely
assume that the philosophical foundation of his dissent was actually the same as Judge
Fagg’s. That is to say, every single judge who sat during these five trials believed that
loyalty oaths were Constitutional. That is to say, the majority on the Supreme Court
butted up against the dominant ideology (and dominant party) of the day.
Congressional Response
Congress introduced a pair of bills dealing with the judiciary immediately
following the Supreme Court decisions in Garland and Cummings. The first bill,
introduced by Thomas Williams, tried to make it so that a full Court had to hear and
unanimously agree, in order to declare a statute unconstitutional. That bill died in
committee. George Boutwell’s bill effectively overrode the Garland decision, seeking to
bar ex-rebel attorneys from practicing in the Supreme Court. Boutwell believed it
“entirely competent for the legislative department of the government to declare that
certain persons shall not hold the office of attorney.” His Constitutional logic came via

1143
Ridley v. Sherbrook.

500
two separate clauses. First, he claimed the law was “necessary and proper.” Also, he
quoted the Constitution, “The Congress may by law vest the appointment of such inferior
officers as they deem proper in the president alone, in the courts of law, or in the heads of
departments. Of course, the “can’t trust rebels” defense was employed. Wilson
contended that “no person who does not possess a good moral character” should be
permitted to appear before US Courts. In fact, their pardon was “record-proof” of their
guilt.
1144
Boutwell said, “Based upon the actual facts of their lives…they are unworthy to
appear in the judicial tribunals of the country.” Men guilty of treason, murder, and
insurrection had no right to appear in US Courts. Boutwell received applause not only
from the galleries, but also from the House floor for one memorable speech:
The pardon of the president may open the doors of jails and penitentiaries; it may
release criminals who are guilty of murder…But while I occupy a place upon this
floor, never with my consent shall the pardon of the president be a certificate on
which a felon may enter into the sacred tribunals of this land and assist in the
administration of justice.
1145

Boutwell tightly controlled who spoke and for how long, although, Democrats put
up an admirable fight. Initially, Boutwell had planned for debate on the bill to last only
an hour. A number of Democrats became upset, feeling that the measure deserved more
deliberation. In fact, Representative Chanler spent nearly his entire five minutes
explaining that five minutes was not long enough to defend the honor of the Supreme
Court.
1146
Through various requests to adjourn, table the motion, and calls for
attendance, Democrats forced the House into 30 roll call votes. This pushed the debate to

1144
Representative Henry Wilson, 39
th
Congress, 2
nd
Session. Congressional Globe, 648.

1145
Representative George Boutwell, 39
th
Congress, 2
nd
Session. Congressional Globe, 647, 648, 685.

1146
Representative John Chanler, 39
th
Congress, 2
nd
Session. Congressional Globe, 647.

501
over 20 continuous hours.
1147
Finally, Boutwell allowed Democrats to speak. Robert
Hale said that lawyers were only officers of the court in a technical sense. The real issue
at hand was a man’s profession.
1148
William Niblack said the bill overrode the
independence of the judiciary and the pardoning power of the president.
1149
Most of the
attention belonged to a trio of Democrats—Rogers, Finck, and Boyer—to make the
longest, wide-reaching, and sometimes overlapping argument.
Table 85. Rogers, Finck, and Boyer.
Issue Rogers Finck Boyer
Supreme
Court
“This bill undertakes to
override the plain principles…
in the case of Ex Parte
Garland.”
“Set aside the
decision of the
Supreme Court”
“Override an
express decision of
the highest tribunal
of the country”
Real
object
“Deprive persons of the right
and privilege of acting as
attorneys”
“Prevent men [to the
bar] who have in
any way encouraged
the rebellion.”

Ex post
facto
“It is an ex post facto law” “It is an ex post
facto law”
Bill of
attainder
“It assumes to pronounce the
guilt of the person…Deprives
the citizen…of the estimable
right of trial by jury.”
“Singles out one
profession”
1150

Pardon “These people have been
pardoned…[they] have had
their guilt entirely wiped out.”
“To restore the
pardoned man to the
same position that
he would have
occupied had he
never committed the
offense”

1147
Finck notes the length of time. Representative William Finck, 39
th
Congress, 2
nd
Session.
Congressional Globe, 669.

1148
Representative Robert S. Hale, 39
th
Congress, 2
nd
Session. Congressional Globe, 648.

1149
Representative William E. Niblack, 39
th
Congress, 2
nd
Session. Congressional Globe, 672.

1150
See Andrew Rogers, Finck, and Benjamin Boyer, 39
th
Congress, 2
nd
Session. Congressional Globe,
pages 647, 669-671, 671-672, 684.

502
Rogers believed it was bad policy, as well as outside the bounds of Congress
since attorneys were not US officials.
1151
Finck responded to Boutwell’s claim that the
Supreme Court was incapable of protecting itself, and therefore needed Congressional
interference. He claimed, “I think the Supreme Court is just as competent to protect itself
and maintain its self-respect.” He also believed that the measure was a partisan ploy. He
took his partisanship claim pretty far, “I say, moreover, and charge it here without fear of
contradiction, that leading men of the Republican Party at the North encouraged this idea
and encouraged the right of the Southern states to withdraw from the Union.”
1152
Finally,
Boyer closed the Democratic defense with a stinging rebuke of the Republican Party:
The time was when all [political] parties respected, at least, the Supreme Court of
the United States. Whatever vituperation and abuse politicians might heap on
each other, whatever epithets might be applied to him who held the chief
executive office of the country, the judges of the Supreme Court received from all
parties the homage which was due to a tribunal distinguished during the whole
history of the country…[Now,] the Executive is a barrier to the designs of the
majority in this House, the Supreme Court is another barrier; therefore war is
made upon both the Executive and the Judiciary. This 39
th
Congress has been
engaged from the very earliest period of its existence in the attempting to control
and absorb, not only the legislative, but likewise the executive and judicial
branches of the government.
1153

Table 86. Boutwell’s bill.
Yeas Nays Total
Republicans 101 2 103
Democrats 0 34 34
UU/U 7 6 13
Total 108 42 150

1151
Rogers, 2
nd
Session, 647, 671-672.

1152
Finck, 2
nd
Session, 669-671.

1153
Boyer, 2
nd
Session, 684.

503
Despite the efforts of the Democrats to stall the bill, the majoritarian-based House
of Representatives passed the measure. As indicated in the table above, it was a highly
partisan vote. The bill never made it out of committee in the Senate. Although
Boutwell’s bill never became law, it gives us insight into the Republican distaste for the
Supreme Court’s test oath decisions. Because the Williams and Boutwell bills were
introduced so quickly after Garland and Cummings, there can be no doubt that they were
the regime’s response to unfavorable Court opinions. Williams’s bill wanted to
restructure the entire way of hearing and deciding upon cases. It would have made it
easy for Congress to disallow the Court from overturning legislation. Because the Court
could not hear cases unless the Bench was full, Congress could expand the size of the
Court and then refuse to add the extra Justices. In addition, it would only take one
dissenting Justice to hang the jury. Surely Republicans could count on at least one
Justice upholding Republican Reconstruction. Meanwhile, Boutwell’s bill sought to
directly override Justice Field’s majority opinion in Ex Parte Garland. It was a power
play by House Republicans, designed at best to send a message to the Court, and at worst
to pull institutional rank over the Judiciary. Regardless of which intention it was meant
to serve, both bills demonstrate that the Court was out of line with regime preferences in
this early period of Reconstruction.
Conclusion
In the early postbellum period, the Republican coalition was quite confusing. On
issues like the Civil Rights Bill and the Freedmen’s Bureau Bill, Moderates aligned with
Radicals. On other subjects, such as confiscation of Southern land and black suffrage,

504
Moderates allied with Conservatives and Democrats. It was difficult enough to find
single issues, let alone complete visions of Reconstruction, in which a majority
Republicans could agree upon. The necessity of military courts was one issue in which
Republicans could find a majority. Republicans did not want to entrust locally-elected
judges, or even federal judges who had to live among Southern whites, to decide on court
cases between whites and blacks. Furthermore, they did not trust these courts—
especially the municipal ones—to quell or punish lynching. Military courts were part of
the Freedmen’s Bureau and Civil Rights bills because they were essential to complete
any realistic vision of reconstruction.
Republicans also found a majority on loyalty oaths. From the beginning of the
period, Radical/Moderate Republicans had believed that the ironclad oath was necessary.
The Senate, in particular, displayed these feelings with its internal provision for every
member to take the oath. Wade-Davis, the Senators’s oath, the Fourteenth Amendment,
the constant struggle on the pardon issue, Boutwell’s post-Garland bill—these were all
attempts to secure strong loyalty oaths. When the Court got in the way of loyalty oaths,
and military courts, the regime re-discovered the two as consensus issues. Publicizing
the issues allowed the Radicals and Moderates to consolidate their alliance. That
combination soon became the driving force of the regime.
Thus, the Supreme Court of 1866 is another story of locating the Supreme Court
in political time. The Stage 1 Court was unaligned with the regime (i.e., opposed to the
elected branches) and the regime itself was quite strong. When these two factors come
together, we can expect the regime to have problems with Court decisions. That does

505
not, however, mean that the regime cannot employ the Court to further regime goals.
Although the personnel on the Bench might not have been part of the regime, party
leaders could still use the institutional make-up of the Court to pursue the political and
policy goals of the regime. Because the Court was opposed to the regime, it handed
down anti-regime decisions. Because the regime was strong, it had the ability to respond
those decisions. That response ultimately consolidated the regime’s power, both in the
antebellum and postbellum periods.
The intra-party dynamics of the Republican era are not as straightforward as that
of the Democratic period. In the 1830s, the split between Democrats and National
Republicans was marked, especially on Indian removal. In the 1860s, the Republican
Party itself had three factions: Radicals, Moderates, and Conservatives. Unpacking how
those factions worked with and against each other makes the analysis more complicated
in two ways. Obviously, the legislative politics are more complex. Also, the Old
Guard/New Guard model does not work as well. For example, when Jackson was
elected, he represented the New Guard—a brand new party swept into office and
expected to repudiate the Old Guard, who still had holdovers sitting on the Supreme
Court. In the Republican period, the Supreme Court of 1866 was actually staffed by a
majority of Lincoln appointees. Put differently, Republicans officially claimed a
majority of the Court. Here, the Civil War must be looked as an interregnum that delayed
Stage 2 implementation.
Because Republicans had to deal with the war, they approached Supreme Court
appointments differently than Jackson. For Jackson, it was simply a matter of

506
appointments. In 1831 (the year Marshall handed down Worcester), he had only
appointed two of the seven Justices. By 1836, Old Hickory had appointed a majority of
the Bench, including Chief Justice Taney. No wonder the so-called federalism
“Revolution of 1837” came merely a year after Jackson made the tide-turning
appointment. The Republican story, on the other hand, is more complicated.
Technically, Republicans made a majority of appointments during the Civil War. When
Milligan came to the Court, a majority of Justices were Lincoln appointees. But these
Justices had been appointed based on a single litmus test: Would they issue decisions that
helped win the war? Even Stephen J. Field, a Democrat, had been appointed to the Court
because Lincoln believed he could trust the Californian to help the war effort. At the
time of their appointments, their political ideology on other issues was relatively
unimportant. Once the war ended, Supreme Court cooperation became more of an
unpredictable enterprise. In a sense, relative to the regime in 1866, the Taney Court
represented the Old Guard, the Lincolnian Court represented the Middle Guard, and the
eventual Stage 2 Republican Court embodied the New Guard.
The elected wing of the regime struggled with the transition from Middle Guard
to New Guard too. During the war, all Republicans united on key issues (e.g., habeas
corpus, executive power). Afterwards, the party broke into multiple factions. The
Court’s decisions in Milligan, Garland, and Cummings helped consolidate some of those
factions to form the dominant governing coalition. This kind of consolidation differs
somewhat from that of the Jacksonian period. In Stage 1 of the antebellum era, the
Marshall Court unintentionally helped consolidate the Democratic Party’s constituency.

507
Following Worcester v. Georgia, Jackson’s noncompliance appealed to the Deep South,
which soon became the base of the Democracy. Following Milligan, Garland, and
Cummings, the Republican Party itself consolidated into a Radical/Moderate coalition.
Consolidation for the Democratic Party implied a strengthening of the voters; for the
Republican Party, a fusing of two wings of the party. Who actually got “consolidated,”
does not matter as much as how the model plays out in political time in both periods. In
each era, the strong regime/unaligned Court dynamic led to the Stage 1 Supreme Court
trying to get in the way of the will of the governing regime. Ironically, in trying to
provide an obstacle to Congress or the president, the Court only helped bring about a
stronger oppositional regime.

508
Chapter 6: Republican Era—Stage 2
Once the Republican Party found its coalitional footing, it set out to implement its
platform. Along the way, the Supreme Court played a key role in assisting the regime.
In this second stage of the realignment cycle, the regime reset the agenda a number of
times to pursue its political and policy goals. At first, Republicans were primarily
concerned with Reconstruction, and ensuring that white Southern racists would not use
postbellum lenience as an excuse to all but reinstitute slavery. As economic issues
became more pressing, the party took Reconstruction off the table. Throughout the
period, the Supreme Court’s docket dovetailed with the goals of the regime.
Given the Court’s place in political time, this should come as no surprise. Though
the Republican Party had to fight through some early Lincolnian Justices, it eventually
captured the Court. Moreover, the party retained its political strength after it
consolidated into an identifiable legislative majority (with some help from a trio of
Supreme Court cases). This strong-aligned scenario is the zenith of the Supreme Court’s
authority within the federal government. With an electorally stable, as well as
ideologically aligned, Congress and president, the Court can set out to implement parts of
the regime’s program. Just by handing down favorable decisions, the Court follows
through on the policy goal of the regime. In addition, by doing so, the Court helps
reinforce the political commitments of the regime. That is, the Judiciary helps deliver
promised goods, which secures the base.
This chapter details how the Republican Party entered Stage 2, and how the
regime employed the Court to help implement its vision. The chapter examines three

509
issues in which the Court assisted the regime: reconstruction, legal tender, and post-
reconstruction issues. In each, I give a brief introduction as to the regime’s preferences
before going more in depth into the Court cases and their implications. Each issue will
show how the Court contributed to the policy goal of the coalition. The conclusion looks
at what this Stage 2 Republican Court can teach us. Most importantly, it shows how a
strong-aligned dynamic can produce a Court willing and able to help implement the
regime’s platform. I close by comparing and contrasting the pair of Stage 2 cases. There
are some differences between the Taney Court and the Republican Court, but the
overwhelming similarity lies in their location in political time.
Radical Reconstruction
Andrew Johnson and the Moderates controlled the regime throughout Presidential
Reconstruction. But Johnson’s “swing around the circle” alienated the president from the
Moderate wing in Congress. Radicals used the tension to win big in the midterm
elections. They not only won more seats, but also converted otherwise Moderates to their
agenda. By 1867, Radicals controlled Reconstruction. True to their name, they instituted
a more radical vision of Reconstruction. Within days of taking their seats, the 40
th

Congress passed the Military Reconstruction Act over Johnson’s veto. It divided the
South into military districts and placed the Federal Army in Dixie. The Army was
charged with registering voters for the election of delegates to new constitutional
conventions. States also had to ratify the Fourteenth Amendment in order to gain their
Congressional representation. Shortly after, Radicals pushed through the Fifteenth
Amendment—giving blacks a Constitutional right to the ballot. They impeached the

510
president. A couple years later, they helped elect U.S. Grant. Blacks were elected to
state and federal offices. In sum, Radical Republicans dominated Reconstruction in the
late 1860s. The Supreme Court followed suit.
The first major case to deal with Radical Reconstruction was Mississippi v.
Johnson, where Mississippi asked the Court to enjoin President Johnson from executing
the Military Reconstruction Act. Although Johnson had vetoed the Act, the override
forced the president to name commanders to the military districts in the South, where
they would oversee Radical Reconstruction. To his credit, Johnson did not intend to
provide much of a roadblock. He might have wanted to appoint Southern sympathizers
to the military commander posts, but he would follow through on the execution of the
Military Reconstruction Act. Mississippi sued, arguing that the President was not above
the rule of law, and that “when acting in opposition to the Federal Constitution, [he] may
be treated as an individual.” Although much of the plaintiff’s argument discussed the
ability of the Court to enjoin the President, the foundation of the claim rested on the fact
that they thought the MRA was either unconstitutional and/or bad policy. They claimed
that the bill expelled ten states from the Union and deprived millions of the Constitutional
rights. “So far as Constitutional liberty is concerned,” counsel reasoned, “they might as
well be living under a czar or a sultan…Life, liberty, and property may be taken from
them without due process of law.”
Attorney General Henry Stanbery represented the defendant. He said that an
injunction against the president was quite foolish. For starters, the president did not have
to answer to any other higher institution. “He is beyond the control of any other

511
department, except through the impeachment power,” the Attorney General stated.
Furthermore, such a ruling would create quite a “spectacle.” If the Court enjoined the
president, he could either follow the decision or not. Either way, it would put him at odds
with one of the other branches. If he chose to still execute the bill, would he be charged
with a criminal offense? How could he not be thrown in jail? He would be kept in jail
without any remedy, “for in cases of commitment for contempt no habeas corpus…can
ever reach the prisoner.” The consequences would range from comical to disastrous:
You leave the government without a head; you leave the office vacant, and the
people must go about to get another President to perform these functions and
these duties. In the meantime, until that is done, everything is at large, and there
is not a law of the United States that can be executed, not an officer that can be
appointed or an officer that can be removed. There is no one left to proclaim
insurrection, if that shall happen. There is no one left to perform all the duties
which for the safety of this people as a nation are reposed in the President.

Writing for a unanimous Court, Chief Justice Chase decided in favor of the
president. Chase laid out the question at the beginning of the opinion: “Can the president
be restrained by injunction from carrying into effect an act of Congress alleged to be
unconstitutional?” He then differentiated between enjoining lower executive officers
(such as Cabinet members) and the president. Other officials had ministerial duties, in
which their job left nothing to discretion. Chase called it a “simple, definite duty.” The
duty of the president, on the other hand, was to see that laws be faithfully executed. In
this case, it meant appointed military generals and detailing sufficient military force to
allow those generals to do their jobs. This responsibility was not ministerial, but rather
“executive and political.” Thus, Chase said, it would amount to the Judiciary telling the
Executive how the Executive should execute the laws. Quoting John Marshall, Chase

512
called such a notion “an absurd and excessive extravagance.’” Altogether, the Chief
Justice laid out a simple proposition: Congress legislates the law and the president
executes those laws. Assuming the laws were proper, the Court could not interfere. In
this case, the Court denied jurisdiction to enjoin Johnson in the performance of his
official duties.
1154

In a similar case, Georgia tried to get the Court to issue an injunction against
some of the military leaders from carrying out the Military Reconstruction Act. Named
Georgia v. Stanton, the Peach State sued Secretary of War Edwin Stanton, as well as US
Grant. Attorney General Stanbery once again represented the defendants. He argued that
the case was moot because the commanding general in Georgia had yet to do anything.
Georgia could not sue if she had not yet been wronged. More importantly, to enjoin the
federal government would be to impose an absolute judicial veto, which seemed outside
the bounds of the Constitution. The question had been decided through the proper
channels (Congress overriding the presidential veto). It was a political question, and one
the Court had no jurisdiction over. Stanton explained that Georgia believed she was still
a state of the Union, and asked the Court to rule as such. If the Court had the ability to
declare Georgia a state, then it also had the ability to rule she was not a state. “That great
political question, state or not a state…is political…in every way,” Stanton said.
Counsel for Georgia contended the claim that no harm could be predicted from
the law. They detailed the promises laid out by the president, commanding general, and
sub-commanders in the need to carry out the MRA. Moreover, real harm would come

1154
Mississippi v. Johnson 71 U.S. 475 (1866).

513
about as a result of shutting down statewide elections. It would lead to “an immediate
paralysis of all the authority and power of the state government by military
force…depriving it of the necessary means of continuing its existence.” As it existed in
the late 1860s, Georgia had always only allowed white men to vote. Changing those
requirements from an outside force (like Congress) amounted to interrupting Georgia’s
republican government. A “new state would be formed,” they claimed. “Impending evil
will produce consequences fatal to the continuance of the present state,” counsel urged,
“and, consequently…the injury would be irreparable.”
Georgia believed Stanbery’s assertion of a “political questions” doctrine did not
apply here. It was a simple case of judicial review—and in this instance, the Military
Reconstruction Act was unconstitutional. Furthermore, it was bad policy. Counsel said
that the acts would exclude a large part of the constituent body (i.e., whites) from acting
as members of the state. “The state is to be Africanized,” they warned. Stanbery jumped
on this argument, pointing out that Georgia’s problem was not in the law, but rather in the
results. The Attorney General believed that Georgia did not care about the
enfranchisement or disenfranchisement of its residents. “The evil lies away beyond that;
the evil is not in registering the voters, but in something that the voters are afterward to
do,” he made clear.
Writing for a unanimous Court, Justice Nelson agreed with many of Stanbery’s
assertions, including the policy issue. Nelson spent a good deal of time explaining an
interesting point regarding state property. Georgia had argued that she owned various
holdings within the state, such as the Executive Mansion. Incursion by the federal army

514
amounted to deprivation of state property. If Washington could not take the property of
an individual or a corporation, then it had no right to take it from a state. Stanton had
almost disregarded the point, saying that the military generals had not yet done such a
thing, and therefore Georgia had not legal basis to bring it to court. Nelson pointed out
that it was a lame argument, only meant to thwart Reconstructive efforts. If Georgia
were truly concerned about her property, she would have couched her brief in completely
different terms. As is, Nelson explained, the case was really about policy, and not law.
In addition, the case was overtly political. It did not involve any rights that were in any
real danger. Since no action had yet been taken, the Court could not step in to halt the
actions of any aggressors. “No case of private rights or private property infringed…is
presented by the bill, in a judicial form, for the judgment of the Court.” Finally, Nelson
agreed that the case raised political questions outside the bounds of the Supreme Court.
Again quoting John Marshall, the Court ruled that the case “savors too much of the
exercise of political power to be within the province of the judicial department.”
1155

Ex Parte McCardle presented the most interesting challenge to the Supreme Court
during Radical Reconstruction. William McCardle was a newspaperman in Mississippi
who published anti-Reconstruction stories. The federal army arrested McCardle, placed
him in jail, and refused to deliver him to a civil court. They planned to try him in a
military tribunal. Although Ex Parte Milligan had announced that military courts could
not operate where civil courts remained open, Section 3 of the MRA declared that
officers could either try criminals in civil courts or “when in his judgment it may be

1155
Georgia v. Stanton 73 U.S. 50 (1868).

515
necessary for the trial of offenders, he shall have power to organize military commissions
or tribunals for that purpose.” This was the first pair of conflicting laws. The other
involved statutory limitations on the Court’s jurisdiction. In the 1867 Habeas Corpus
Act, Congress allowed those who had been “restrained of his or her liberty” to appeal to
inferior courts for a writ of habeas corpus. That decision could then be appealed to
Circuit Courts, and then to the Supreme Court. McCardle had used this provision to
appeal for a writ in the first place. However, after his appeal to the Supremes (and before
the Justices conferenced about the case), Congress passed another law repealing the
ability to ask for the writ.
Table 87. Timeline for Ex Parte McCardle.
Date Event
1866 Ex Parte Milligan
2/5/67 Congress passes 1867 Habeas Corpus Act
3/2-9/68 Ex Parte McCardle argued at Supreme Court
3/27/68 Congress repeals part of the 1867 Habeas Corpus Act
2/24/68-
5/26/68
Impeachment of Andrew Johnson (Chief Justice Chase presiding)
3/2/69 Ex Parte McCardle reargued
4/12/69 Court hands down Ex Parte McCardle decision

The timeline above shows that Congress intervened in the case after it had been
argued but before it had been decided. The main point of contention in the case became
whether or not Congress’s new jurisdictional limitation applied to Ex Parte McCardle.
William Sharkey, who had previously participated on the side of the South in Mississippi
v. Williams and Georgia v. Stanton, represented McCardle. He claimed that the
imprisonment had come about under an act of Congress, presumably the MRA. “The

516
question then presents a case arising under ‘the laws of the United States,’” he said. The
Constitution—not Congress—vested jurisdiction in the Court to hear this case. Sharkey
claimed that the act of Congress could not divest the Court of its ability to decide on writs
of habeas corpus. Sharkey, probably correctly, charged Congress with shady dealings:
“Its [the March 27, 1867 act] language is general, but, as was universally known, its
purpose was specific.” They might have well codified, “that the Supreme Court of the
United States shall never publicly give judgment in the case of McCardle, already
argued, and on which we anticipate that it will soon deliver judgment, contrary to the
views of the majority in Congress, of what it ought to decide.” Sharkey called it an
“exercise by the Congress of judicial power.”
Opposing counsel, headed by former Moderate leader Lyman Trumbull, made a
brief, almost cursory, argument. They started, “The Constitution gives to this Court
appellate jurisdiction in any case like the present one, only with such exceptions and
under such regulations as Congress makes.” The Court had had jurisdiction under the
1867 Habeas Corpus Act because Congress had allowed for such jurisdiction; but “the act
conferring the jurisdiction having been repealed, the jurisdiction ceased.” Finally, “the
assumption that the act of March, 1868, was aimed specially at this case, is gratuitous and
unwarrantable. Certainly the language of the act embraces all cases in all time; and its
effect is just as broad as its language.”
The Court was placed in a tough position. They disposed of the “legislative aims”
contention easily, saying they were “not at liberty to inquire into the motives of the
Legislature.” The jurisdictional issue was more complex, though. The Court could rule

517
against the clear and expressed wishes of Congress by accepting jurisdiction. If the
Justices went this route, they were almost bound by Milligan to grant McCardle his writ.
It would have been a procedural and substantive disaster for the Supreme Court. But
immediately following the first argument, the Court had no escape route from hearing the
case and deciding upon the merits. The March 27, 1868, Act gave the Court an out. It
allowed the Court to duck the issue on procedural grounds. Writing for a unanimous
Court, Chase wrote the Court had no jurisdiction in the case, due to Congressional repeal
of the Habeas Corpus Act of 1867. It was “expressly repealed…[and] hardly possible to
imagine a plainer instance of positive exception.” Now, Chase did not go so far as to say
that Congress could adjust the Court’s jurisdiction in habeas (or other) cases whenever
the Legislature pleased. He addressed Sharkey’s claim that Congress had tried to
completely strip the Court of its jurisdiction: “Counsel seem to have supposed, if effect
be given to the repealing act in question, that the whole appellate power of the Court, in
cases of habeas corpus, is denied. But this is an error,” the Chief Justice pronounced. He
claimed that the 1868 Act only stripped the Court of its ability to hear appeals that came
from the Circuit Courts. Thus, he could: 1) maintain technical consistency with Milligan;
2) deny jurisdiction in McCardle, and avoid a fight with the elected branches; and thus,
3) still uphold the central integrity of the Court’s independence.
1156

The final case dealing with Radical Reconstruction was Texas v. White. At issue
was the repayment of US bonds sold by Texas during the Civil War. In 1851, the federal
government authorized Texas to sell 5000 bonds at $1000 a piece. They would be

1156
Ex Parte McCardle 74 U.S. 506 (1869).

518
redeemable in 1865 with 5% semi-annual interest. During the War, the rebel state
government in Texas sold 211 bonds to George W. White and John Chiles, defendants in
Texas v. White. Instead of cash, White and Chiles used cotton and medicine to pay for
the bonds. During Reconstruction, the loyalist Texan provisional government sued White
and Chiles to reclaim the bonds. They asked the Court to enjoin the pair from cashing the
bonds. The defendants claimed that Texas did not have standing in the US Supreme
Court. Although the Court could hear disputes between states and citizens of other states
(White and Chiles were both New Yorkers), they claimed that Texas had lost its
statehood as a result of the War. Texas had renounced its place in the Union, and until
fully Reconstructed, she could not be considered a full-fledged partner.
The majority on the Court disagreed with White and Chiles’s contention on
standing. They also ruled on the merits, finding in favor of Texas. Writing for a 5-3
Court, Chase claimed that Texas did have standing to bring suit in the Supreme Court.
He laid out a definition for “state”: “A state, in the ordinary sense of the Constitution, is a
political community of free citizens, occupying a territory of defined boundaries, and
organized under a government sanctioned and limited by a written constitution, and
established by the consent of the governed.” Through mutually-agreed-upon annexation,
Texas was admitted to the Union as a state in 1845. But, Chase asked, could Texas
renege on the agreement? Could she cease to be a state? No, he answered. When Texas
joined,
She entered into an indissoluble relation. All the obligations of perpetual union,
and all the guaranties of republican government in the Union, attached at once to
the State. The act which consummated her admission into the Union was
something more than a compact; it was the incorporation of a new member into

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the political body. And it was final…Our conclusion therefore is, that Texas
continued to be a State.

Chase admitted that in order for a state to bring a suit to the High Court, it had to
have a government competent to represent its constituents. Although Texas was not fully
reconstructed yet under the MRA, it still had a government capable of ensuring law and
order, and bringing suits. The opinion explained that President Johnson had established a
provisional government in Texas, and that government met the threshold for a
government stable enough to make Texas a state. Even though she was not fully
restored, she still held some rights granted to all states by the Constitution. This did not
mean that the Court had established the Executive as the proper authority to determine
statehood. Chase said, “The power to carry into effect the clause of guaranty is primarily
a legislative power, and resides in Congress.” So, while the president could establish a
provisional government (ostensibly under his Commander-in-Chief authority), it was up
to Congress to determine what constituted a republican government. Fortunately, Chase
said, Congress had made such a determination through the MRA. A state became
“republican” once it met certain guidelines, such as ratifying the Fourteenth Amendment.
As it stood at oral argument in February 1869, Texas might not have been fully
reconstructed, but she was a state insofar as she could bring suit in federal courts.
With the standing issue disposed of, Chase moved on to the merits. At base, he
declared that the sale of the bonds was null and void. White and Chiles did not legally
own the bonds, and therefore could not receive payment. The Court’s reasoning relied on
a progressive logic. First, the rebel legislature of Texas was not authorized by Congress,
and it was in hostility towards the US and the Constitution. “It cannot be regarded,

520
therefore, in the courts of the United States, as a lawful legislature, or its acts as lawful
acts,” Chase wrote. In addition, any act “in furtherance or support of rebellion against the
United States…must, in general, be regarded as invalid and void.” Given that White and
Chiles had agreed to provide cotton and medicine that was to be used by the Confederate
Army, Chase believed their contract aided the rebellion. Essentially, Chase used the
same argument that Republicans (Conservative, Moderate, and Radical) had been making
for a long time: the federal government would not pay rebel war debts. Altogether, his
opinion was strongly pro-Radical Reconstruction: it was the Legislature’s duty to
determine when a state met the republican guarantee threshold; those who thought they
could profit from secession ultimately ended up losing thousands of dollars; and, once
again, the Court seemingly legitimized the Military Reconstruction Act.
Unlike the other Radical Reconstruction cases, not all the Justices agreed in Texas
v. White. Robert Grier wrote a brief dissent that touched on both the standing and merits
issues raised by the majority. Grier did not believe Texas was a state. Instead of relying
on Chase’s definition of a state, Grier believed that representation in Congress amounted
to statehood. Since Texas did not seat members in the House or Senate, she could not be
considered a state, and therefore could not bring suit in the Supreme Court. Moreover,
the MRA itself considered Texas to be a “rebel state,” and provided a government for the
region until a republican state government could be established. Grier concluded,
“Politically, Texas is not a state in this Union.” On the issue of issuing an injunction and
returning the bonds, Grier again dissented from the majority opinion. Essentially, he

521
believed it involved simple contract law. Texas sold the bonds. White and Chiles
wanted to cash the bonds. The federal government had promised to pay. Grier wrote:
It is a matter of utter insignificance to the government of the United States to
whom she makes the payment of these bonds. They are payable to the bearer.
The government is not bound to inquire into the bona fides of the holder, nor
whether the state of Texas has parted with the bonds wisely or foolishly. And
although by the Reconstruction Acts she is required to repudiate all debts
contracted for the purposes of the rebellion, this does not annul all acts of the state
government during the rebellion, or contracts for other purposes, nor authorize the
state to repudiate them.

Grier’s dissent is not a ringing endorsement of anti-Radicalism. Along with the
majority opinion, it too gives the Radicals much to be pleased about. For starters, it
upholds Congress’s ability to determine what constitutes a republican government. This
ruling would still have given Radical Republicans the ability to impose the same
restrictions and conditions on Southern states. In addition, the ruling seemed to
legitimize the MRA. Perhaps Radicals were not pleased with the idea of White and
Chiles cashing in on the Civil War, but pragmatically, the Grier dissent was more Radical
than Democrat. Finally, Justices Swayne and Miller also dissented. Writing for the pair,
Swayne stated briefly that he agreed with Grier on the standing and with the majority on
the merits. Once more, this opinion carried all the political implications as that of the
majority. It stated that Congress alone guaranteed republican governments, the MRA
was Constitutional, and the speculators could not profit.
1157

1157
Texas v. White 74 U.S. 700 (1869).

522
Legal Tender
The issue of legal tender proved to be a central component to Reconstruction
Republicanism. During the Civil War, the Northern government had tried to raise funds
by increasing taxes and selling war bonds. These measures accounted for 87% of the
government’s revenue during the war. The other 13% came from printing treasury
notes.
1158
In 1862, then Secretary of the Treasury Salmon P. Chase urged Congress to
pass the Legal Tender Act, which authorized the circulation and use of greenbacks—
paper money that became legal tender. Under the Act, greenbacks could stand in for
specie money. That is, instead of turning in specie currency for their value in gold,
people could use greenbacks as real money at face value. Of course, this move had its
downfalls: it devalued the currency and brought about inflation. However, it also had the
intended positive effect of expanding the money supply and allowing the government to
spend more during the War. The creation and use of paper money as legal tender was a
central component to financing the Yankee war effort.
After the war, greenbacks became a central component to furthering other
Republican goals. Although the issue of federal involvement in economics would become
the divisive issue in the Republican Party, in the 1860s, most Republicans followed their
party’s tradition of playing an activist role in the national economy. More specifically,
they believed Washington’s involvement could help further industrialization. Paper
money allowed Congress to invest in business more easily. In addition, many of the
Radical Republican Reconstruction efforts were expensive. Items such as the

1158
John M. Murrin, ed. Liberty, Equality, Power (Harcourt College Pub., 2001): 422.

523
Freedmen’s Bureau and the maintenance of the Federal Army in the South cost a lot of
money. Keeping the Legal Tender Act in place artificially gave Congress more leeway in
developing and nurturing Reconstruction programs. At base, legal tender might not have
been the emotional heart of the Republican platform, but it helped provide the
foundational support for many of the more politically charged issues. Put simply, paper
money as legal tender was very important to Republicans in the late 1860s and early
1870s.
The Supreme Court dealt with the issue in Hepburn v. Griswold, also known as
the First Legal Tender Case. In June 1860, Susan Hepburn signed a promissory note in
which she agreed to repay Henry Griswold in 20 months for a $11,250 loan. At the time
in which the note was made, the US had no paper money. Instead, all transactions were
backed by gold and/or silver. Five days after the note was due, Congress passed the
Legal Tender Act. Hepburn did not repay the loan until two years later, at which interest
had increased her account to $12,720. At that point, she offered United States notes in
that amount. Griswold had expected to be paid in specie redeemable for precious metals.
Instead, he received the depreciated bills. Bringing his issue to court, Griswold claimed
that the promissory note had been made at a time when US notes did not even exist. He
contended that he—as the payee—could not be forced to receive a currency that was
different from the one stipulated as when the contract was made.
The Court ruled 4-3 in favor of Griswold. In 1870, the Court membership still
felt the effects of Andrew Johnson’s relationship with the Republican Congress. Because
of Presidential Reconstruction, Congress did not trust Johnson to appoint Supreme Court

524
Justices. They cleverly restricted the number of Justices who could sit on the Court,
lowering the number so that a death or retirement could not result in a new Justice.
Justice Wayne had died three years earlier, and Justice Grier had retired just months
before the decision came down. After Johnson left office, the Legislature added back the
seats. But by the time Hepburn v. Griswold came down, they had yet to confirm the two
additional Justices.
Chase wrote for the majority, and Justice Miller wrote the dissent, with Justices
Swayne and Davis signing on. Chase started out by stating that the question presented as
whether or not Griswold had to accept US notes. More specifically, considering
Griswold and Hepburn’s contract was made before the passage of the Legal Tender Act,
did the payee have to accept bills created after the promissory note was signed? He
wrote, “There appears to be strong reason for construing the word debts as having
reference only to debts contracted subsequent to the enactment of the law.” Reading this
line, one would think Chase had sided with Griswold. But the Chief Justice curiously
turned to the Congressional debate, trying to figure out the legislative intent as to whether
or not the legal tender could be applied to past debts. Looking at the record on the Legal
Tender Act, Chase found that “no suggestion was ever made that…did not apply as fully
to contracts made before as to contracts made after its passage.” Chase probably could
have argued that this exclusion meant that Congress had not considered the issue. He
also could have plausibly interpreted the exclusion to mean that Congress surely did not
intend legal tender to be used for past debts—they omitted it from debate because it was

525
so obvious. Instead, Chase peculiarly believed that this exclusion meant that Congress
definitely did intend for legal tender to apply to past debts, such as Hepburn’s.
The Court could have easily disposed of the case by saying Congress did not
intend past debts to be payable with legal tender. This would have limited the number of
cases Hepburn would have applied to. It would also keep the paper money plank of the
Republican platform intact. At first glance, it seems like Chase intended to keep the
question a narrow one. The question at hand, he said, “is whether Congress has the
power to make notes issued under its authority a legal tender in payment of debts, which,
when contracted, were payable by law in gold and silver coin.” In doing so, Chase
believed that the Court had to “determine whether the act of February 25, 1865 [the Legal
Tender Act]…is Constitutional and valid or otherwise.” Miller agreed that this was at the
heart of the case: “The question which this court is called upon to consider, is whether the
authority to make the notes of the United States a lawful tender in payment of debts, is to
be found in Congress.” The majority and minority clashed on nearly every Constitutional
item that might have given the Legislature the authority to pass the Legal Tender Act.
The majority believed that Congress did not have the ability to circulate bills as
tender. They listed why it did not fall under the heading of some of Congress’s monetary
powers. “It is certainly not the same power as the power to coin money,” the opinion
read. “Nor…[is it] the power to regulate the value of coined money.” That amounted to
determining the weight, purity, form, impression, and denomination of coins. “Nor is the
power to make notes a legal tender the same as the power to issue notes to be used as
currency.” Chase reasoned that the Articles of Confederation had expressly given its

526
Congress that power; and if the Constitution meant to do the same, it would have laid it
out in similarly plain words. “On the contrary,” Chase wrote, “the whole history of the
country refutes that notion. The states have always been held to possess the power to
authorize and regulate the issue of bills for circulation by banks or individuals.” Miller
retorted that among the “unequivocal utterances” of the Constitution, one of the clearest
was that “no state shall coin money, emit bills of credit, or make anything but gold and
silver coin a tender in payment of debts.” This removed the whole matter from state
jurisdiction. However, “no such prohibition is placed upon the power of Congress…On
the contrary, Congress is expressly authorized to coin money and to regulate the value
thereof,” Miller wrote.
The minority also believed that the Legal Tender Act fell under Congress’s war-
making powers. He explained that the war had called upon all of the federal
government’s powers. In addition, the Civil War had been “more expensive than any that
the world has ever known.” To pay for such costs, “Congress was called on to devise
some new means of borrowing money on the credit of the nation.” Without the Legal
Tender Act, “the national government would have perished, and with it, the Constitution
which we are now called upon to construe with such nice and critical accuracy.” At its
root, the act “furnished instantly a means of paying the soldiers in the field, and filled the
coffers of the commissary and quartermaster.” Chase did not believe it fell under the
war-making powers. He claimed that almost any exercise in power involved a need to
fund the execution of decree. For example, the power to establish post offices created a
need to collect taxes and build roads. “The argument, therefore, seems to prove too

527
much,” Chase wrote, “It carries the doctrine of implied powers very far beyond any
extent hitherto given to it…It would convert the government, which the people ordained
as a government of limited powers, into a government of unlimited powers.”
Chase felt that the Legal Tender Act did not meet the “necessary and proper”
threshold. That clause was meant to meet “Constitutional and legitimate ends.” Miller
disagreed as to the threshold. Not only did he disagree on the Article I, Section 8 merits,
but he also believed that the history of the country backed his argument. He pointed out
that the Court had ruled in favor of a National Bank as necessary and proper in its duties
to collect, transfer, and pay revenues. Because it was the “most fitting, useful, and
efficient mode,” Congress was allowed to create and maintain the Bank. Introducing
paper money as legal tender was also appropriate and helpful in coining money, making
war, etc. The minority believed that McCulloch should guide the Reconstruction Court’s
decision. Miller exclaimed, “The necessity in that case [McCulloch] is much less
apparent to me than in the adoption of the legal tender clause.”
Not only did Chase feel that Congress lacked the authority to pass the Act, but he
also thought it violated other Constitutional principles. First, he thought that it violated
the contract clause. Congress could not change Griswold’s contract from specie payment
to paper payment. Now, Chase admitted that the Constitution only prohibited states from
passing laws that impaired contracts. But he thought that the framers “intended that the
spirit of this prohibition should pervade the entire body of legislation…In other words,
we cannot doubt that a law not made in pursuance of an express power, which necessarily
and in its direct operation impairs the obligation of contracts, is inconsistent with the

528
spirit of the Constitution.” Miller agreed that “undoubtedly it is a law impairing the
obligation of contracts made before its passage.” But the Constitution only forbid states
from doing this. In addition, Congress was expressly charged with establishing a
bankruptcy code, which the Legislature had exercised three times. That application of
power clearly “operated on contracts made before it was passed.”
Finally, Chase believed that the Legal Tender Act stripped one of property
without due process of law. This point ultimately rested upon the policy preferences of
the majority and the minority. Chase touched on “eminent writers” who claimed that
legal tender did not add anything to the credit or usefulness of government notes. “They
insist, on the contrary, that it impairs both,” Chase cited. He claimed that paper money
would only create a larger money supply, which would increase prices, and depreciate the
currency. Thus, Hepburn’s repayment would not be worth as much as the original loan.
Chase likened it to receiving only 50 or 75 acres in land when one had rightfully paid for
100 acres. Miller somewhat agreed, saying that currency not redeemable in coin “soon
sinks.” But those who crafted the Legal Tender Act had been careful (even cautious) in
writing the legislation. Even with specie, not everyone cashed their bills for metals at
once. The Legal Tender Act might have expanded the money supply, but it also took
care to prevent a run on gold or silver. Chase worried, “If the quantity issued be
excessive, and redemption uncertain and remote, great depreciation will take place.”
Miller responded that the expansion of the money supply was not too much.
Republicans must have been confused by the Chief Justice’s opinion. Salmon P.
Chase had always been a reliable Republican. Though he was notoriously ambitious, he

529
had always adhered to the party line. Moreover, he had been Treasury Secretary when
the Civil War Congress passed the Legal Tender Act. Part of Chase’s untold story is his
masterful financing of the war, especially when compared to the rampant inflationary
schemes the South took. Nevertheless, Chase seemed to have changed his mind.
Lauding his Chief, Justice Stephen Field later commented, that Chase “preferred to
preserve his integrity as a judicial officer rather than his consistency as a statesman.”
1159

Miller put it best when he said the due process argument was “too vague for my
perception,” and “this whole argument of the injustice of the law…and of its opposition
to the spirit of the Constitution is too abstract and intangible for application to courts of
justices.” In his defense, Chase seems to have provided somewhat of an explanation for
his actions. Speaking about the Constitutionality of the Act, he wrote:
Many who doubted yielded their doubts…Some who were strongly averse to
making government notes a legal tender felt themselves constrained to
acquiesce…Since the return of peace, and under the influence of the calmer time,
[they have] reconsidered their conclusions, and now concur in those which we
have just announced.

Perhaps Chase tried to reconcile his earlier actions as Secretary of the Treasury
with his vote in Hepburn v. Griswold. It actually seems quite likely that his preferences
were opposed to legal tender, but that the exigencies of war forced his hand. At the very
least, this case involved much more than Constitutional items; it turned on policy
preferences. Of course, with many Supreme Court cases, it is difficult to draw the line
between policy and Constitutionalism. Even in Hepburn, Chase and Miller debated
clauses like war-making, coining money, and due process. Still, the decisions seemed to

1159
Justice Stephen Field’s dissent in Juilliard v. Greenman 110 U.S. 421 (1884).

530
turn on whether or not the Justices agreed with the monetary policy of the Civil War
Congress. Though Justice Miller is as much to blame as Chase, the former put it nicely
in critiquing the Chief’s opinion: “It substitutes our ideas of policy for judicial
construction, an undefined code of ethics of the Constitution, and a court of justice for the
national legislature.”
1160
In other words, Miller accused Chase of legislating from the
Bench. The real problem, however, was that the Republicans did not have enough
Justices to overcome the four-Justice majority.
Justices William Strong and Joseph Bradley were confirmed on the same day as
the Court handed down the First Legal Tender Case. They soon heard another case with
similar facts, and with Republicans now controlling the majority, the Court overturned
their 1870 decision. McCloskey writes, “The Hepburn doctrine…enjoyed the shortest
life of any important doctrine ever promulgated by the Court.”
1161
The Second Legal
Tender Cases came in the form of two separate suits. In the first, a Confederate leader
had confiscated 608 sheep from a Unionist woman. Mrs. Lee brought suit against
commander Knox, demanding that she be paid for her losses. In the other case, Mr.
Parker agreed to sell Mr. Davis a plot of land for an agreed-upon price. The contract was
dated before the passage of the Legal Tender Act, but executed afterwards when Davis
presented Parker with greenbacks. Parker refused to sell the land for the paper money,
whereupon Davis took the dispute to court. In sum, thee two cases represented both
possibilities regarding whether or not a payee had to accept paper money. Parker v.

1160
Hepburn v. Griswold 75 U.S. 603 (1870).

1161
McCloskey, 76.

531
Davis represented the same issue raised in Hepburn v. Griswold: whether or not a
contract made previous to the Act could be paid in greenbacks. Knox v. Lee confronted
the policy issue even more squarely: could current debts (acquired after passage of the
Act) be paid off in paper money?
The Court produced five opinions. Chase, Clifford, and Field wrote separate
dissents. Strong wrote the majority opinion, and Bradley a concurrence. Strong’s
opinion focused on many of the points brought up Hepburn. He attacked Chase’s
decision on many fronts. For starters, the Legal Tender Act fell under Congress’s power
to coin money. “The Constitution…was designed to provide the same currency…
Whatever power there is over the currency is vested in Congress,” Strong wrote. And
surely that clause did not merely apply only to gold and silver coinage. The framers were
surely sensible enough to have forseen emergencies that might have required the
government to expand the money supply. Bradley added that many of the Constitution’s
framers had politically come of age during the Revolutionary War, in which the
American Congress had seen it necessary to introduce paper money. He quoted Ben
Franklin as saying, “This [paper] currency, as we manage it, is a wonderful machine.”
Now, Bradley differed from Strong in that the former believed the power to turn to
greenbacks fell under the national government’s ability to borrow money. Still, he
believed the Act was Constitutional and sanctioned by the framers. Bradley summed up
his interpretation of original intent, “They had seen the important uses to which these
securities might be applied.”

532
Strong repeated much of what Miller argued in the Hepburn dissent. He said that
Chase had assumed that: 1) the Act violated the Contract Clause; and 2) following the
spirit of the Constitution, Congress was prohibited from doing anything that might impair
the obligation of contracts. Strong said that regardless of whether debts were paid in gold
or greenbacks, they were still paid in legal money; “it cannot, therefore, be maintained
that the Legal Tender Act impaired obligation of contracts.” In addition, Strong used the
passage of bankruptcy acts to show that Congress could—and had—altered contracts. In
fact, Strong commented, “This is obliterating contracts entirely.” Again using Miller’s
reasoning, the majority opinion confronted the Hepburn doctrine that stated that the
repayment in greenbacks violated one’s right to due process. Strong pointed out that a
new tariff, embargo, or war would inevitably bring with it great losses. Some would even
render some previously valuable property almost worthless. Did this mean that the
federal government could not set tariff rates or declare war? Surely not.
Strong wrote that the Necessary and Proper Clause had always given Congress “a
very wide discretion” in legislation. He couched his argument in McCulloch, saying,
“This discretion has generally been unquestioned, or, if questioned, sanctioned by this
Court.” He asked whether anyone would have declared the Legal Tender Act
unconstitutional were it the only way to maintain the army and navy. Even if answered
negatively, Strong did not feel it was up to the Court to determine the more appropriate
and efficient means for carrying out legislative responsibilities. Bradley also touched
upon necessary and proper, similarly arguing that it was largely up to Congress to

533
determine these matters of policy and efficiency. He too claimed that McCulloch had
decided the question in his favor.
Two other arguments deserve attention, if only for their political implications.
Strong believed paper money was good policy, and to overturn it would be dangerous,
causing “great business derangement, widespread distress, and the rankest injustice.”
There would also be a run on gold in order to satisfy contracts, which would result in
“ruinous sacrifices, general distress, and bankruptcy.” The concurrence agreed, saying
that taking paper out of the economy would provide “for the failure or disappearance of
the ordinary currency in times of financial pressure.” It would threaten the collapse of
commercial credit. Thus, to Bradley, it was not a war power because declaring it so
would mean the government could only turn to legal tender in times of hostilities.
Instead, creating greenbacks was an omnipresent power that Congress could call upon
whenever the “public exigencies may arise…which may make it expedient and
imperative to exercise it.”
Also, both Strong and Bradley pointed out that the Court heard the First Legal
Tender Case without a full slate of judges. According to the pair of Grant appointees,
this was part of the reason for hearing and overturning the case. Of course, the Second
Legal Tender Cases had proceeded under a larger panel of Supreme Court Justices, and
therefore carried more weight, at least according to the newest members of the Court.

534
Table 88. Strong and Bradley.
Strong Bradley
“In so holding, we overrule so much of
what was decided in Hepburn v. Griswold,
as ruled the acts unwarranted by the
Constitution so far as they apply to
contracts made before their enactment.
That case was decided by a divided court,
and by a court having a less number of
judges than the law then in existence
provided this court shall have. These cases
have been heard before a full court, and
they have received our most careful
consideration… We are not accustomed to
hear them in the absence of a full court, if it
can be avoided. Even in cases involving
only private rights, if convinced we had
made a mistake, we would hear another
argument and correct our error. And it is
no unprecedented thing in courts of last
resort, both in this country and in England,
to overrule decisions previously made. We
agree this should not be done
inconsiderately, but in a case of such far-
reaching consequences as the present,
thoroughly convinced as we are that
Congress has not transgressed its powers,
we regard it as our duty so to decide and to
affirm both these judgments.”
“Where the decision is recent, and is only
made by a bare majority of the court, and
during a time of public excitement on the
subject, when the question has largely
entered into the political discussions of the
day, I consider it our right and duty to
subject it to a further examination, if a
majority of the court are dissatisfied with
the former decision. And in this case, with
all deference and respect for the former
judgment of the court, I am so fully
convinced that it was erroneous, and
prejudicial to the rights, interest, and safety
of the general government, that I, for one,
have no hesitation in reviewing and
overruling it. It should be remembered,
that this court, at the very term in which,
and within a few weeks after, the decision
in Hepburn v. Griswold was delivered,
when the vacancies on the bench were
filled, determined to hear the question
reargued. This fact must necessarily have
had the effect of apprising the country that
the decision was not fully acquiesced in,
and of obviating any injurious
consequences to the business of the country
by its reversal.”

It should not come as a surprise that the only opinions rendered by the majority
came from Strong and Bradley. Immediately after their appointment, the Second Legal
Tender Cases were placed on the Court’s docket. In addition, their opinions speak,
essentially, to their placement on the Bench, claiming that their very own presence on the
Court made the Second Legal Tender Cases more authoritative. Put simply, Strong and

535
Bradley were expected to overrule Hepburn v. Griswold. Not concealing their motives or
preferences, they acted with haste.
1162

In a way, Juilliard v. Greenman can be called the Third Legal Tender Case. In
1884, the Court once again heard claims that greenbacks were unconstitutional. With
even more Republicans on the Bench, the Court ruled 8-1 in favor of paper money. The
facts of the case were quite similar to previous suits. Mr. Greenman had promised to pay
Mr. Juilliard $5122.90 for 100 bales of cotton. Upon delivery, Greenman presented
Julliard with $22.50 in gold, $.40 in silver, and $5100 in government notes. Greenman
argued that Congress had renewed the Legal Tender Act through its passage of a new
1878 Act, which essentially continued the federal government’s practice of accepting
government notes as legal tender. Juilliard disagreed, and sued for the remaining $5100
owed in gold and/or silver. Counsel for Juilliard stuck to familiar arguments: paper as
legal tender was unconstitutional; it didn’t meet the war-making power; and it did not fall
under Congressional power to borrow or coin money.
However, they did present two new arguments. First, while Juilliard’s claim that
it violated the Contract Clause was not new, he also claimed that Congress did have some
leeway in impairing contracts, such as passing bankruptcy reform. By allowing this one
concession, he seemed to sweep away the counterargument to violation of contract.
Secondly, and more importantly, counsel claimed that the first Legal Tender Act might
have been Constitutional because public exigencies required it. That is, the Civil War
mandated an expansion of the money supply. They were “war measures, exceptional in

1162
Knox v. Lee 79 U.S. 457 (1870).

536
their character.” However, nearly two decades after Appomattox, those dire
circumstances no longer existed. “In the absence of public exigency,” Juilliard argued,
“legal tender legislation is not a means appropriate to any legitimate end of
government…public exigency required or justified the passage of the act of May 31,
1878.”
Justice Horace Gray, appointed by Republican Chester Arthur, wrote for the
Court. Like the oral argument, some of his claims were tried-and-true. He believed
Congress had the authority to issue greenbacks under its power to coin money, borrow
money, and provide a national currency (“either in coin or in paper”). He also believed
the Legal Tender Act was Constitutional under the auspices of providing for the common
defense, chartering a National Bank (Gray dutifully cited “the great judgment in
McCulloch v. Maryland”), and collecting taxes. Once again, a Republican Associate
Justice discussed the merits of the Act as a necessary and proper function of its Section 8
powers. Just like Miller and Strong, Gray did not understand Chase’s “spirit of the
Constitution” argument. He pointed out that the Constitution expressly prohibited states
from making law that impaired contracts, but that it put no such limitation on the federal
government. Almost as if to take a shot at Chase’s

Abstract (if available)

Abstract Party leaders can use the Supreme Court to further their political and policy goals. By locating the governing regime's strength and the Court's alignment with the regime, we can better understand how the Court operates at any given moment. In Stage 1 of the realignment cycle, the Court can be used to help consolidate the coalition. In Stage 2, the Court helps implement the party's platform. In Stage 3, the Court tries to maintain the integrity of the coalition. This dissertation looks at the Supreme Court of the antebellum and postbellum periods, demonstrating that placing the Court in "political time" is a useful way to understand the institution.

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Asset Metadata

Creator Bridge, Dave (author)

Core Title The Supreme Court and the governing regime in political time

School College of Letters, Arts and Sciences

Degree Doctor of Philosophy

Degree Program Politics

Publication Date 04/01/2010

Defense Date 02/18/2010

Publisher University of Southern California (original), University of Southern California. Libraries (digital)

Tag anti-trust,Indian removal,Jacksonian,legal tender,OAI-PMH Harvest,political time,reconstruction,regime,Republican,Slavery,states rights,Supreme Court

Place Name USA (countries)

Language English

Contributor Electronically uploaded by the author (provenance)

Advisor Barnes, John E. (committee chair), Gillman, Howard (committee chair), Ethington, Philip J. (committee member)

Creator Email david_bridge@baylor.edu,deb@usc.edu

Permanent Link (DOI) https://doi.org/10.25549/usctheses-m2894

Unique identifier UC1114480

Identifier etd-Bridge-3518 (filename),usctheses-m40 (legacy collection record id),usctheses-c127-307798 (legacy record id),usctheses-m2894 (legacy record id)

Legacy Identifier etd-Bridge-3518.pdf

Dmrecord 307798

Document Type Dissertation

Rights Bridge, Dave

Type texts

Source University of Southern California (contributing entity), University of Southern California Dissertations and Theses (collection)

Repository Name Libraries, University of Southern California

Repository Location Los Angeles, California

Repository Email cisadmin@lib.usc.edu