Legal scholar Gene Healy
has made a powerful argument in favor of abolishing the Fourteenth Amendment to the US Constitution. When a fair vote was taken on it in
1865, in the aftermath of the War for Southern Independence, it was
rejected by the Southern states and all the border states. Failing to
secure the necessary three-fourths of the states, the Republican
party, which controlled Congress, passed the Reconstruction Act of
1867 which placed the entire South under military rule.
The purpose of this, according to one Republican congressman, was
to coerce Southern legislators to vote for the amendment
"at the point of a bayonet." President Andrew Johnson
called this tactic "absolute despotism," the likes of which
had not been exercised by any British monarch "for more than 500
years." For his outspokenness Johnson was impeached by the
The South eventually voted to ratify the amendment, after which two
Northern states-Ohio and New Jersey-withdrew support because of their
disgust with Republican party tyranny. The Republicans just ignored
this and declared the amendment valid despite their failure to secure
the constitutionally-required three-fourths majority.
The Cato Institute's Roger Pilon, who is a supporter of the
Fourteenth Amendment, has defended the way in which the amendment was
adopted on the grounds that after the war some Southern states had
enacted the "notorious Black Codes" (Liberty Magazine,
"What should Congress have done," Pilon asked, "turn
a blind eye to what was going on?" The notion that a
racially-enlightened and benevolent Republican Congress
unconstitutionally imposed the Fourteenth Amendment on the nation
because it was motivated primarily (if not solely) out of concern with
racial discrimination in the South is childishly naive and a
historical. The fact is, Northern states pioneered viciously
discriminatory "black codes" long before they existed in any
Southern state, and these codes were supported by many of the same
Northern politicians who voted for the Fourteenth Amendment.
The Revised Code of Indiana stated in 1862 that "Negroes and
mulattos are not allowed to come into the state"; forbade the
consummation of legal contracts with "Negroes and mulattos";
imposed a $500 fine on anyone who employed a black person; forbade
interracial marriage; and forbade blacks from testifying in court
against white persons.
Illinois-the "land of Lincoln"-added almost identical
restrictions in 1848, as did Oregon in 1857. Most Northern states in
the 1860s did not permit immigration by blacks or, if they did,
required them to post a $1,000 bond that would be confiscated if they
Senator Lyman Trimball of Illinois, a close confidant of Lincoln's,
stated that "our people want nothing to do with the Negro"
and was a strong supporter of Illinois' "black codes."
Northern newspapers were often just as racist as the Northern black
codes were. The Philadelphia Daily News editorialized on November 22, 1860, that "the African is naturally the inferior
race." The Daily Chicago Times wrote on December 7, 1860,
that "nothing but evil" has come from the idea of Abolition
and urged everyone to return any escaped slave "to his master
where he belongs."
On January 22, 1861, the New York Times announced that
slavery would indeed be a "very tolerable system" if only
slaves were allowed to legally marry, be taught to read, and to invest
their savings. In short, the cartoonish notion that the Republican
party was so incensed over racial discrimination in the South after
the war that, in a fit of moral outrage, it trashed all constitutional
precepts to dictatorially adopt the Fourteenth Amendment, should not
be taken seriously. As Alexis de Tocqueville wrote in Democracy in
America, it was obvious to all that racial prejudice was stronger in
the North than it was in the South. "The prejudice of race,"
wrote Tocqueville, "appears to be stronger in the states that
have abolished slavery than in those where it still exists."
If the Republican party was so sensitive about racial
discrimination in the post-war era it would not have sent General
Sherman out west just three months after the war ended to commence a
campaign of genocide against the Plains Indians. The very same army
that had recently conquered and occupied the Southern states-led by
Generals Grant, Sherman, and Sheridan-mass murdered Indian men, women,
and children during the winters, when families would be together, with
massive Gatling gun and artillery fire. In a letter to his son a year
before he died (1889), Sherman expressed his regret that his armies
did not murder every last Indian in North America.
The Fourteenth Amendment has had precisely the effect that its
nineteenth-century Republican party supporters intended it to have: it
has greatly centralized power in Washington, D.C., and has subjected
Americans to the kind of judicial tyranny that Thomas Jefferson warned
about when he described federal judges as those who would be
"constantly working underground to undermine the foundations of
our confederated fabric." It's time for all Americans to
reexamine the official history of the "Civil War" and its
aftermath as taught by paid government propagandists in the
"public" schools for the past 135 years.
Thomas J. DiLorenzo is professor of economics at Loyola College and
an adjunct scholar of the Mises Institute.