Los Angeles Times

March 2 is America’s real birthday

In 1867, Congress forced the Confederat­e states to create new constituti­ons and to ratify the 14th Amendment.

- By Kermit Roosevelt III Kermit Roosevelt III is a law professor at the University of Pennsylvan­ia Carey Law School and the author of “The Nation that Never Was: Reconstruc­ting America’s Story.”

March 2 is rarely celebrated as the birthday of our America — but it should be. This was the day in 1867 when Congress overrode President Andrew Johnson’s veto of the first Reconstruc­tion Act, which created a new republic by wiping out the government­s of the Confederat­e states and putting them under military control.

The 1776 revolution created a new nation, certainly. But the America of 1776 or 1787 was what historians have called a slaveholde­rs’ republic, with a Constituti­on that protected slavery and excluded Black people from national citizenshi­p. Black Americans, women, and other groups had no protection from state discrimina­tion, and even white men had almost no federal constituti­onal rights protecting them against their state government­s.

The 13th Amendment, which banned slavery, the 14th Amendment, which granted citizenshi­p to formerly enslaved people and guaranteed equal protection of the laws to all, and the 15th Amendment, which prohibited racial discrimina­tion in voting, formed what I call the Reconstruc­tion Constituti­on — one very different from the Constituti­on of 1787.

The 14th Amendment was drafted in 1866, during the post-Civil War era of Reconstruc­tion. Slavery was over, at least in name, but Americans had not agreed on the new order going forward. Former Confederat­e states tried to reimpose white supremacy with laws called the Black Codes, which denied many rights to the formerly enslaved.

Congress rejected those discrimina­tory laws by passing civil rights acts that granted citizenshi­p and other rights to Black Americans. But Congress worried that the courts might invalidate these acts, or that subsequent congresses, containing representa­tives of the South, might repeal them.

The 14th Amendment was designed to place these issues beyond the reach of pro-slavery judges or ordinary politics. It would set the terms of a new American social contract, one based on inclusion and equality.

The Reconstruc­tion Congress sent this proposed amendment out to the states for ratificati­on, as Article V of the Constituti­on required. It asked America to commit itself to this new order — perhaps most fundamenta­lly, to accept Black Americans as citizens. America said no. Tennessee ratified the 14th Amendment in 1866, but apart from that, every former Confederat­e state refused. And not just the former Confederat­es. Delaware and Maryland rejected the amendment in early 1867; so did Kentucky. New Jersey and Ohio would try to withdraw their ratificati­ons in 1868.

By the end of 1866 it was clear that the 14th Amendment could not get ratificati­on from three-fourths of the states as Article V required. The attempt to change America through the existing legal framework had failed.

And so it had to go on by other means.

In February 1867, Congress passed the first of what would be four Reconstruc­tion Acts. That first act declared that no legitimate government­s existed in 10 former Confederat­e states. (Tennessee, which had ratified the 14th Amendment, was spared.) It abolished those state government­s and placed them under military control. On March 2, Congress overrode Johnson’s veto of the bill to make it law.

Then, Congress instructed the people of the South to hold constituti­onal convention­s and make new states. Congress decided who would be a citizen — including the formerly enslaved. Congress also decided who would hold political power — the formerly enslaved were entitled to participat­e in the convention­s and former Confederat­es were not. The four Reconstruc­tion Acts were a revolution. They destroyed the old Confederat­e states that had rejected the 14th Amendment and made new ones that would accept it.

This might sound like a bold claim. But Florida, Georgia and Alabama, which sued the Secretary of War, alleged exactly this: the Reconstruc­tion Acts were an extinction of the existing state and the creation of a new one, not by consent but by force. Similarly, the 1868 platform of the Democratic Party decried the Reconstruc­tion Acts as unconstitu­tional and revolution­ary.

The Supreme Court refused to hear the states’ suit, and history has long rejected the views of the 1868 Democrats. Since then, we have suppressed the radicalism of what happened during Reconstruc­tion because we want to tell a story of continuity in which the America of 1787 gradually develops into a more just union. But that is not what happened, and it will be a sign of our maturity as a nation when we can face the truth of our origins.

In 1776, revolution­aries destroyed their old Colonial government­s. New constituti­ons called new states into being. In 1787, those new states ratified a new federal Constituti­on and made a new nation. In 1867, revolution­aries again destroyed existing government­s, and again new constituti­ons brought new states to life. Those new states ratified a new Constituti­on, remaking America. The Reconstruc­tion Act of March 2 started that process, and we owe more to it than to the Declaratio­n of 1776.

 ?? Steve Helber Associated Press ?? REMOVAL of a statue of Confederat­e Gen. Robert E. Lee.
Steve Helber Associated Press REMOVAL of a statue of Confederat­e Gen. Robert E. Lee.

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