President Johnson's Dilemma of 1865

He also has the distinction of being the first US President to be impeached!

Here’s the situation…

The Civil war ends, passing of the 13th Amendment abolished slavery, Lincoln is assassinated, his VP Andrew Johnson assumes the Presidency, and the southern states are not real happy about the 13th. President Johnson found himself in a very difficult situation; perhaps even more dire than what Lincoln faced.

Just before Lincoln’s assassination, Congress created the Freedmen’s Bureau. The Freedmen’s Bureau was established by an act of Congress on March 3, 1865, two months before the end of the Civil War. It was intended as a temporary agency to last the duration of the war and one year afterward. Its purpose was to help millions of former slaves and poor whites in the South in the aftermath of the Civil War. The Freedmen’s Bureau provided food, housing and medical aid, established schools and offered legal assistance. The bureau, woefully under-staffed, was placed under the authority of the War Department and the majority of its original employees were Civil War soldiers.

The Dilemma…

Now that the war had ended, Congress needed a more permanent solution. They proposed a bill twice to do that. The bills would expand the Freedmen’s Bureau, but Johnson vetoed them for several reasons which he explained in his official veto messages. Here is an excerpt from his veto message dated February 19, 1866¹ which explains the dilemma, and his concern for the future of the country:

“In this connection the query presents itself whether the system proposed by the bill will not, when put into complete operation, practically transfer the entire care, support, and control of 4,000,000 emancipated slaves to agents, overseers, or taskmasters, who, appointed at Washington, are to be located in every county and parish throughout the United States containing freedmen and refugees. Such a system would inevitably tend to a concentration of power in the Executive which would enable him, if so disposed, to control the action of this numerous class and use them for the attainment of his own political ends.”

The ‘Executive’ is of course referring to the executive branch of the federal government. He wasn’t so much concerned about his administration’s abuse of the additional power, but he knew that if that door was even cracked open, it would eventually be opened further and further, transferring more and more power from the States to the federal government. His concern is clearly stated:

“… a concentration of power in the Executive which would enable him, if so disposed, to control the action of this numerous class and use them for the attainment of his own political ends.”

This certainly implies that all those under the ‘care’, and I assume legal jurisdiction, of the Freedmen’s Bureau, which is under the War Department, which is under the Executive branch, are at the whim of whoever is President. Was Johnson correct in trying to avoid this by vetoing the Bills? I think he was… but he only delayed the inevitable.

The 14th Amendment to the rescue, or ruin, of the Republic?

There are 4,000,000 freed slaves that have no citizenship status due to the rulings in the Dred Scott case (Scott v Sanford, 19 Howard 393). Something had to be done. To rectify this, Congress passed the 14th Amendment on June 8, 1866, and ratified it two years later, on July 9, 1868. Its main purpose was to confer some kind of citizenship status on the freed slaves. Here’s the problem… it did NOT create a ‘national’ citizenship. That power is nowhere in the U.S.Constitution. What it did was:

• create a second type of citizenship status, a citizen of the United States,
  which from this article we know is legally equal to a citizen of the District of Columbia,

• conferred that new citizenship on all the freed slaves,

• then compels the States to treat this second type of citizen the same as they treat their own State citizens — this is the second Privileges & Immunities clause.

• This citizenship status did NOT have unalienable rights! That’s a biggie!

Prior to the 14th Amendment, the District of Columbia had no citizens. Ratification of the 14th added 4,000,000 new citizens to the Executive branch! With a total US population of ~31,000,000 in 1865, that gives the federal government ~13% of the entire US population — of course, not all in DC but distributed all over the US. Today, that has exploded to 100%. The federal government has all the citizens, which is exactly what President Andrew Johnson was concerned about.

Are citizens of the United States (aka, citizens of the District of Columbia) under the Executive branch as POTUS Johnson feared? Do they have ‘subject’ status, as in the king’s (Congress’s) subjects? Are we back to where we started from prior to the Declaration of Independence? Was the 14th Amendment the ruin of the Republic?

The 64 million dollar question…

I’ve read cogent arguments that a US citizen is not nearly as free as a state citizen; civil rights are not as powerful as unalienable, fundamental rights. Why couldn’t we all just go back to being State citizens with unalienable rights? Can one be a State citizen without being a US citizen? The courts have already settled that question as explained this article. That is where things get interesting…

1. Messages and Papers of the Presidents, Volume VIII, Bureau of National Literature, Inc., New York, 1897.