The Fourteenth Amendment:
Birthing the New Freedom
Citizenship and Freedom
Some argue slavery was not the issue of the Civil War but
But what does that mean? The power of states to ex-
ercise power over land and people, perhaps? If “States’
Rights” means anything, it is the sovereignty of a state to
determine not only the rights of its citizens but who was a
citizen in the first place. Before the Civil War, the states
determined citizenship, see Corfield v. Coryell, 6 F. Cas.
546 (1823), with many excluding black people. Thus, the
argument that the Civil War was about States’ Rights and
not slavery may sound nice, but inevitably circles back to
slavery – the state right that mattered to the South and
After the 13th Amendment, Congress passed laws to
recognize not only that black people were free, but that
they were citizens.
The Civil Rights Act of 1866: In 1865, Congress passed
the Civil Rights Act of 1866, which guaranteed citizenship without regard to race, color, or previous condition
of slavery or involuntary servitude. This Act was the first
time the term “civil rights” appeared in Federal law. 8 President Andrew Johnson vetoed the bill because it conferred
citizenship on the freedmen when 11 out of 36 states were
unrepresented in Congress and, he claimed, because it
discriminated in favor of African Americans and against
whites. Johnson’s twist of racial logic remains as striking
today as it did then, and Congress overrode his veto.
In any presidential ranking, Andrew Johnson is with
near unanimity rated the worst.
The Freedmen’s Bureau: Before his murder, President Lincoln initiated the Freedmen’s Bureau Bill.
On March 3, 1865, Congress authorized the Freedmen’s Bureau
in the War Department (“An Act to establish a Bureau for the Relief
of Freedmen and Refugees”) located in the War Department, and
Union Army General Oliver O. Howard headed it. The Bureau aided freed slaves in the former Confederate States. Congress intended
In addition to the Civil Rights Act of 1866, President Johnson
vetoed all other significant legislation for protecting freedmen, including the Freedmen’s Bureau. Johnson’s veto had
nothing to do with its purpose because “there is no part of
our country in which the authority of the United States is
disputed.” Thus, the “measure, therefore, seems to be as
inconsistent with the actual condition of the country as it is
at variance with the Constitution of the United States.” He
was also dismissive of the plight of free black people because the myth of supposed economic rights
obviated the need to provide guarantees for civil rights:
“His condition is not so exposed as may at first be imagined. He is in a portion of the country where
his labor can not well be spared. Competition for his services from planters, from those who are
constructing or repairing railroads, and from capitalists in his vicinage or from other States will enable
him to command almost his own terms.”
Ignoring a key feature of the Black Codes, Johnson continued,
“He also possesses a perfect right to change his place of abode, and if, therefore, he does not find
in one community or State a mode of life suited to his desires or proper remuneration for his labor,
he can move to another where that labor is more esteemed and better rewarded.”
In Johnson’s world, the southern states would help black people to keep their labor:
“In truth, however, each State, induced by its own wants and interests, will do what is necessary and
proper to retain within its borders all the labor that is needed for the development of its resources.
The laws that regulate supply and demand will maintain their force, and the wages of the laborer will
be regulated thereby. There is no danger that the exceedingly great demand for labor will not operate
in favor of the laborer.”
President Johnson’s Freedmen’s Bureau Veto Message, Feb. 19, 1866, available at http:// itw.sewanee.
edu/reconstruction/html/docs/ freedveto.htm. (last visited Mar. 22, 2005), quoted and discussed in
O’Connor at 687-88.
Secretary of War Stanton and Ulysses Grant aim the
Congress cannon at Johnson with the “Tenure of
Office Bill” rammer and “Justice” cannonballs.
Andrew Johnson impeachment
Freedman’s Bureau agent between armed groups of
whites and Freedmen in 1868
the Bureau to last for one year, but in 1866 the Radical Republicans won control of Congress and expanded Bureau’s support and
Under Bureau help, freedmen joined Republican coalitions and
won election in the South. The Bureau challenged the Black
Codes and advocated for African Americans in state and federal
courts and, controversially, allowed testimony from black people
Johnson disposing of the