Republicanism on the Outside: A New Reading of the Reconstruction Congress

By Korobkin, Daniel S. | Suffolk University Law Review, Summer 2008 | Go to article overview

Republicanism on the Outside: A New Reading of the Reconstruction Congress


Korobkin, Daniel S., Suffolk University Law Review


I. INTRODUCTION

The irregular process under which the Fourteenth Amendment was adopted has long been the source of controversy among legal historians. (2) The Thirty-Ninth Congress, which met during the two years directly following the end of the Civil War and the assassination of President

Lincoln, amended the Constitution pursuant to its responsibility to "guarantee to every State in [the] Union a Republican Form of Government." (3) One historian, Bruce Ackerman, argues that the adoption of the Fourteenth Amendment did not conform to the requirements of Article V of the Constitution. (4) Article V, however, is properly read in the context of the Republican Guarantee Clause. (5) Furthermore, as articulated by Akhil Reed Amar, the Republican Guarantee Clause is properly understood against the backdrop of a "geostrategic vision." (6)

This Article promotes a "republican" reading of Reconstruction, including the Fourteenth Amendment, during the Thirty-Ninth Congress. The reading invokes not only what I call "republicanism on the inside"--equal citizenship, popular sovereignty, and other traditional republican principles--but also what I call "republicanism on the outside"--the structural stability and geostrategic security that flow from republican government. The Reconstruction Congress viewed the Republican Guarantee Clause not solely as a vanguard of individual political rights, but also, and perhaps more importantly, as a guardian of the United States itself. Under the republican reading, Congress did its best to follow the Constitution, not to subvert it.

This Article also enters into an ongoing legal-historical debate over the constitutional legitimacy of the Reconstruction Congress. Bruce Ackerman has taken the position that congressional activity during the Reconstruction era can only be defended by a theory of constitutional "moments." Akhil Amar, meanwhile, invokes the Republican Guarantee Clause to defend the constitutionality of the Thirty-Ninth Congress, arguing generally that the Republican Guarantee Clause ought to be interpreted in "geostrategic" terms and not simply in reference to individual rights. This Article will definitively demonstrate, with references to congressional debates, that the members of the Thirty-Ninth Congress viewed republicanism as a national security concept. This theory of republicanism, which I call "republicanism on the outside," explains and justifies the Reconstruction era activity of the Thirty-Ninth Congress when no rights-based theory of republicanism would suffice.

This Article proceeds in four parts. Part I reviews the history of, and debate surrounding, the adoption of the Fourteenth Amendment. Part II outlines a theory of the Republican Guarantee Clause, including the dual framework of republicanism on the inside and republicanism on the outside. Part III shows how this theory animated the Thirty-Ninth Congress in its first session, as it closed its doors to representatives and senators from the former confederate states and proposed what would in time become the Fourteenth Amendment. Part IV discusses how the same theory applied to the second session of the Thirty-Ninth Congress as it enacted the First Reconstruction Act of 1867.

II. STRANGE HISTORY: "FORMALIST DILEMMAS" (7) OF THE FOURTEENTH AMENDMENT

It is widely recognized that the circumstances surrounding the adoption of the Fourteenth Amendment were highly irregular. (8) From the first day of the Thirty-Ninth Congress, would-be representatives and senators sent from the former confederate states were excluded. (9) For months, a number of Democrats called for the admission of these legislators from former confederate states. (10) But legislators from ten former confederate states remained barred from Congress throughout both sessions of the Thirty-Ninth Congress, with only Tennessee's delegation gaining admission late in the first session. …

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