The Seating of Hiram Revels and the Meaning of the Fourteenth Amendment

You know, I have told this story several times privately and it occurred to me that it was the perfect kind of thing for my blog, given my general legal and history geekery.  I thought I would tell you about the first black man seated in the Senate, the Reverend Hiram Revels.  This is him at the right.

One of my side projects when I was an undergraduate student was studying the history that surrounded the passage of the Fourteenth Amendment.  I was keenly interested in what the anti-discrimination principle meant to them.  That is why, for instance, I learned so much about Thaddeus Stevens.

And one of the veins I studied was the story of the seating of Hiram Revels.  For a day or two I sat in the library at my school reading the congressional record as they considered the issue and it actually is a fascinating story.

The year was 1870, and this was to be the first year that Mississippi was to be allowed to have representation since the Civil War.  Back in that day, senators were chosen by the state legislature.  That is, instead of choosing your Senator by direct election, the legislature voted for its choice to be your senator.  So when you hear of Abraham Lincoln running against Stephen Douglas, what he actually was doing was he was campaigning for his party as a whole in the state, so that they would have enough power in the legislature to make him the Senator.

That is important because that meant that when Mississippi was let back into representation in Congress, they had two choices of seats to offer Mr. Revels, and it was up to the Mississippi legislature to choose which one they offered.  And whose seat did they give him?

Well, the seat of a certain Senator from Hurricane, Mississippi: Jefferson Davis.

Needless to say Northern cartoonists had a field day.  For instance, here is a fairly representative example of the fun they had with that thought on the right:

But more than a good, well-deserved slap in the face to Davis, it was a powerful symbol of that shining moment that existed just after the Civil War where real racial progress seemed possible, before it was squelched by terrorist groups like the KKK and the Red Shirts.  I mean one only has to look at South Carolina, where about two thirds of the population and voters were black, and yet by 1880 they had an all-white government, to know something had seriously gone wrong in our democracy.  But for one moment we had a black Lieutenant Governor in South Carolina, and a black Senator in Mississippi and numerous other black Americans given real positions of power and prestige.

But of course when they went to seat him, the racist Democrats tried to stop it by a legal trick and how this is resolved tells you something about how the founders of the Fourteenth Amendment saw their own creation.

To tell the truth, the racists’ argument was kind of ingenious.  It starts with the Dred Scott case.  Now if all you know about Dred Scott v. Sandford is that it declared that the Missouri Compromise was unconstitutional, you are in for an education.  What Supreme Court actually ruled in that case was far more monstrous than that.  As you may know, Scott was a slave who was suing for his freedom in federal court.  His argument was that when his master took him to a free territory, that by operation of law he was freed and sought to have his freedom vindicated in court.

(Incidentally the man who owned him by then was actually an abolitionist who only kept him to gin up this legal case to create a useful precedent.  So it was in a real way an artificial case.)

But before Scott could even be heard, he had to be a citizen.  And the Supreme Court held that because he was black, Scott was not a citizen and could not be made a citizen by any means—not by state law, not by federal law.  So therefore he had no right to even appear in court and he lost automatically.

This is what the court wrote about black people:

They had for more than a century before been regarded as beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations; and so far inferior, that they had no rights which the white man was bound to respect; and that the negro might justly and lawfully be reduced to slavery for his benefit.

The feeling you have right now is what I call “ugly overload”—that is when you are overloaded with the spiritual ugliness of someone else.  The court declared that black people have no rights at all, and that slavery is good for them.  And don’t go thinking that this was just the horrible state of the law at the time.  There is another case that bears on this you might have heard of, the Amistad case made famous by the Spielberg movie of a few years ago.  That case made it clear that black people did have rights that white people were bound to respect—that unless they were “lawfully enslaved,” they had the right to resist being enslaved.

If, then, these negroes are not slaves, but are kidnapped Africans, who, by the laws of Spain itself, are entitled to their freedom, and were kidnapped and illegally carried to Cuba, and illegally detained and restrained on board of the Amistad; there is no pretence to say, that they are pirates or robbers. We may lament the dreadful acts, by which they asserted their liberty, and took possession of the Amistad, and endeavoured to regain their native country; but they cannot be deemed pirates or robbers in the sense of the law of nations, or the treaty with Spain, or the laws of Spain itself; at least so far as those laws have been brought to our knowledge.

Admittedly it is a little weird to think of anyone being legally enslaved, and it is tempting to think that this is a little obscure—that it is like debating how many angels can fit on the head of a pin—and you might be tempted to think that it didn’t make a difference.  But it did.  For the millions of Africans it meant that they couldn’t just be kidnapped into slavery—that there were legal limitations on the practice.  And it also meant that if by law, passing from a slave state to a free territory made a slave a free man, that meant that this free man would have the right to fight for his or her freedom, and even to kill anyone claiming to be that person’s master.  In other words, if Dred Scott was legally to be considered a free man, he would have had every legal right to resist his alleged master to the point of killing him.

So far from simply reflecting the awful state of the law at the time, Dred Scott innovated it, and in a bad way by declaring that black people had no rights that white people were bound to respect.

(And against all odds, the Dred Scott case gets even worse.  Despite the fact that Scott had lost, the Supreme Court went on to declare the Missouri Compromise unconstitutional anyway, in the most naked example of judicial activism in Supreme Court history.  Scott had already lost on this technicality, but then they proceeded to declare gratuitously that the Missouri Compromise was unconstitutional because it was illegal to ban slavery in the territories.  But that is kind of off-topic for this discussion.)

So when the Fourteenth Amendment was first passed, Dred Scott was rebuked with this line:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.

The meaning of this Citizenship Clause was at the heart of the debate over seating Revels.  The racists’ argument is a genuine product of evil genius; it went like this.  Dred Scott v. Sandford declared that no black person could be a citizen.  Then the Fourteenth Amendment’s Citizenship Clause changed the law and made Revels a citizen of the United States.  But, the argument went, that was in 1868 when the amendment was ratified, and therefore by 1870 Revels had only been a citizen for two years.  And Senators had to be citizens for at least nine years, as explained in Article I, Section 3, Paragraph 3 of the Constitution:

No person shall be a Senator who shall not have attained to the Age of thirty Years, and been nine Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State for which he shall be chosen.

So, the racists argued, Revels would not be eligible to be a Senator until 1877 at the earliest.

Now the Republicans in Congress were virtually the same group of people who wrote and ratified the Fourteenth Amendment only two years before and so how they answered it gives you a window into their thinking.  I mean they were not exactly the same people—notably Thaddeus Stevens had passed away by then—but still there was a lot of overlap.

I read the debates and they deployed three arguments in favor of seating Revels.

The first was to point out that this was obviously a racially discriminatory objection.  They pointed toward the example of when Texas was admitted to the Union.  When Texas joined the Union, they were immediately given full representation in Congress.  And yet, before Texas was admitted, its citizens were not citizens of America: they were citizens of the Republic of Texas, an independent nation that broke off from Mexico.  And yet no one raised any objection to seating those Congressmen right away.

Another argument that was deployed was to ask whether Revels counted as black.  Just how black does a person have to be, to be considered black?  How many drops of black blood was necessary to rob him of citizenship under the noxious holding in Dred Scott?

But the last is the one the legal history geek in me finds the most interesting.  They argued that in fact the Fourteenth Amendment didn’t change the law at all.  Hiram Revels was a citizen from the day he was born on American soil and all the Fourteenth Amendment’s Citizenship Clause did was declare positively what the Constitution always said on the subject.  That is, they said that in their view the Citizenship Clause didn’t overturn Dred Scott; it declared that Dred Scott was wrongly decided.

This is a subtlety that non-lawyers often miss.  When the courts rebuke a precedent lawyers know to look for this code language.  If the court says that a prior case has only been “overturned” it means that at one time the law said X, but from now on it says Y.  But if the court takes the additional step of saying that X was wrongly decided, it means the court is saying that not only is Y the law now, but X was never properly considered the law.

And that is what these Republicans were saying in 1870, at least in part: that Revels was always a citizen and as far as Revels’ legal status was concerned, it would be as if Dred Scott never happened.

One cannot be sure which of these arguments won the day.  But when the dust settled after three days of fairly offensive debate, Revels was allowed to take Jefferson Davis’ seat as Americas first black Senator—indeed the first black Congressman—ever seated.

The fact that a decade later many of those signs of progress were rolled back serves then as an ugly cautionary tale for us.  It can be reasonably argued that our first War on Terror was against the KKK and the like, and that the good guys lost that one, and kept losing until 1954 or so.  It serves as a reminder that history does not move in only one direction, and the triumph of good over evil is far from inevitable.  We have to fight for it.

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For another discussion of Dred Scott and the Citizenship Clause and the profound implications it has to our identity as a nation—indeed in defining what the word “nation” means—read this old post from my Patterico days.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.