What President Andrew Johnson’s Veto Messages Reveal About the Civil Rights Act of 1866
For more than a century, Americans have debated the meaning of the Fourteenth Amendment’s Citizenship Clause.
Entire legal theories have been built upon the phrase “All persons born or naturalized in the United States, and subject to the jurisdiction thereof.”
Yet remarkably few Americans have ever examined one of the most important historical records surrounding the constitutional events that gave rise to the Fourteenth Amendment itself.
That record appears in the veto messages of President Andrew Johnson regarding the Civil Rights Act of 1866.
Whether one agrees with Johnson or disagrees with him is not the point. The significance lies elsewhere.
Johnson opposed the legislation. In doing so, he repeatedly identified the people whom Congress intended to protect through the Act.
Ironically, in attempting to stop the legislation, he left behind one of the clearest descriptions of the beneficiaries Congress had in mind.
For that reason, Johnson’s veto messages deserve renewed examination.
The Opponent’s Testimony
In courts of law, there are times when an opponent’s testimony becomes especially significant.
When a supporter praises a measure, few are surprised. But when an opponent repeatedly identifies the intended purpose and beneficiaries of a measure, the testimony often carries special weight.
President Johnson vetoed the Civil Rights Act of 1866.
He objected to it vigorously. Yet throughout his objections, he repeatedly referred to the formerly enslaved population, freedmen, persons of African descent, and those recently emancipated from slavery.
Again and again, his criticism centered upon the fact that Congress was extending protections and rights to a specific class of people emerging from bondage and seeking equal protection under the law.
The significance is not that Johnson opposed the Act.
The significance is that even Johnson understood who Congress was attempting to protect.
The Constitutional Context
The Civil Rights Act of 1866 did not emerge from an ordinary legislative dispute. It emerged from the aftermath of slavery and the Civil War. The Nation faced the unprecedented challenge of incorporating millions of formerly enslaved persons into the constitutional order.
Congress sought to address that challenge through legislation.
The debates were intense. The disagreements were profound.
Yet throughout the controversy, the discussion repeatedly returned to the condition of those who had been held in slavery and the protections necessary to secure their freedom.
Only later would the Fourteenth Amendment be proposed and ratified.
For that reason, many students of history believe the relationship between the Act and the Amendment deserves far more public examination than it has received.
What Most Americans Have Never Been Told
Most Americans can quote portions of the Fourteenth Amendment. Very few can quote the Civil Rights Act of 1866.
Most Americans have heard arguments concerning birthright citizenship. Very few have ever read Johnson’s veto messages.
Most Americans know of the LOCK. Few know the structure the LOCK was intended to protect.
As a result, generations of citizens have debated conclusions while remaining largely unfamiliar with the historical record from which those conclusions emerged.
That is not a criticism of the American We the People; they are latent-asleep, unawakened. It is an observation about American education.
And it is one of the reasons a Constitutional Moratorium has been proposed.
Before judgment comes understanding. Before understanding comes examination.
Why This Matters Now
The present controversy over birthright citizenship has revived questions that many believed had long been settled.
Yet if foundational historical materials have not been fully examined, then prudence suggests they should be examined before new judgments are rendered.
The purpose of revisiting Johnson’s veto messages is not to relitigate the Civil War.
It is not to reopen old wounds. It is not to divide Americans.
It is to understand the constitutional history from which the present controversy emerged.
The greater the question, the greater the responsibility to understand its origins.
And few constitutional questions are greater than those involving citizenship itself.
The Question That Refuses to Go Away
The significance of President Johnson’s veto messages ultimately comes down to a single question.
If one of the principal opponents of the Civil Rights Act of 1866 repeatedly identified the people Congress intended to protect, should that evidence play a role in understanding the constitutional events that followed?
That question deserves examination. Not because it guarantees a particular answer. But because it may affect the question itself.
And if America has been asking the wrong constitutional question, then the Nation owes it to itself to discover that fact before judgment is rendered.
For history cannot speak unless it is first allowed to testify.
And the testimony of history remains one of the most important witnesses in any constitutional controversy.