Debate from 1866 over 14th Amendment raging anew with challenges to Trump’s place on ballot

A constitutional question central to the upcoming presidential election that is now before the U.S. Supreme Court was also argued in front of Chicago’s courthouse in 1866.

On Nov. 2 of that year, U.S. Sen. Richard Yates of Illinois spoke in support of a proposal to ban anyone who served in the government of the Confederacy during the Civil War from holding elected office through a constitutional amendment.

“The Constitution of the United States says that levying war against the United States shall be held to be treason. Did they not levy war against the United States? Therefore, did they not therefore commit treason?” Yates asked an audience that “nearly filled the northern portion of the (courthouse) square from the building to the railings on Randolph street,” according to the Tribune.

The size of the crowd bespoke the enormity of a problem America confronted: Putting the nation back together after a war during which it is estimated that at least 620,000 were killed. Because it depended on unpaid labor, the South’s economic base was all but gone. Northern workers feared losing their jobs to former slaves.

To start the nation’s healing, Congress’s first priority was to make it crystal clear that slavery was dead and gone.

Accordingly, the 13th Amendment to the Constitution, proclaimed in December 1865, forbade slavery. To prevent it from being reborn, Congress established a Joint Committee on Reconstruction. It confronted a double dose of hard reality:

Whatever a law prescribes, in practice the effect of the law is determined by whoever administers it. And unless the federal government was willing to maintain an occupying force in the South, those states had to be allowed to administer the laws.

That presented the likelihood of officials in Southern states sabotaging, rather than protecting, the rights of Black citizens.

The pool of experienced Southern administrators was largely comprised of former Confederate officials, prompting Sen. Yates to proclaim, as his audience cheered:

“If you desire me as your senator in Congress to vote for these men until I think they are fit to come in, until I think there is a loyal sentiment in the South, until I think there is no danger of further bloody war, you must call me home and send another senator there.”

Three days earlier, the U.S. Secretary of the Interior, Orville Browning, snuck a diametrically opposite argument into the Tribune. A former U.S. senator from Illinois, he sent the paper a copy of a letter he said he wrote to former constituents.

The Tribune suspected an ulterior motive. “It is matter of some curiosity here in Illinois why Browning wrote any letter, particularly such a letter at this time,” it reported while sharing the gist of his thinking:

“Mr. Browning objects to the third section of the proposed (14th) constitutional amendment because it disenfranchises the great majority of the educated men of the states that have been in rebellion from any participation in the affairs of the state and federal government.”

A battle over the amendment was fought state by state, and proponents and opponents had a tough sell. Chicago’s chapter of the story reads like what pollsters call “a representative sample” of the nation’s current division. It is a must-read for someone who looks to the past for clues to the present, when some are arguing former President Donald Trump should not be allowed on the 2024 ballot because of his role in the Jan. 6, 2021 insurrection in Washington.

In 1866, Illinois was a Republican state. Abraham Lincoln was a martyred favorite son. But Chicago had a vocal contingent of Copperheads, a faction of Democrats who opposed the Civil War and Lincoln, who were being courted by his successor, President Andrew Johnson.

“The Conservative parasites of Andrew Johnson say that he is carrying out in good faith the purposes and principles of the martyred president,” the Tribune wrote on January 4th. ‘”We hope he is. But like ‘faith’ it rests on things not seen.”

Johnson had been chosen as Lincoln’s running mate in the 1864 election as a southerner opposed to the South’s plantation aristocracy. But following Lincoln’s assassination, his behavior mutated. He falsely claimed a right to veto a constitutional amendment. He vetoed a renewal of the Freedmen’s Bureau, which was aimed at helping ex-slaves become self-sufficient, and the Civil Rights Act of 1866. He pardoned thousands of former Confederate soldiers and officials and was finding a following.

“The Copperheads have begun the work of Reconstruction in Chicago. A call for a meeting to discuss Johnson’s veto, his maudlin harangues and his plot to precipitate twenty-two whitewashed rebels into the Senate and sixty-seven into the House was quietly but industriously circulated among the file leaders all day yesterday and received quite a number of Copperhead signatures,” the Tribune reported on February 25.

The New York Tribune was troubled by Johnson’s veto message regarding the Freedmen’s Bureau: “The president’s manner was very violent. He gnashed his teeth and spoke in a loud voice and boisterous manner.”

“A more undignified exhibition of spleen and rancor from the chief executive of the nation can hardly be imagined,” the Springfield (Ill.) Journal wrote.

The Montreal Witness’ headline proclaimed: “Andrew Johnson Passes the Rubicon.” It alluded to Julius Caesar’s breaking the Roman Republic’s rule that generals couldn’t bring their legions to the capital, least they seize power. The act set off a civil war that led to the death of Caesar and the Republic.

Early versions of the 14th Amendment’s Section 3 suggested the Committee was in no mood to forgive and forget Johnson’s heavy-handed actions. In Section 3, it provided:

“No person shall be qualified or shall hold the office of President or Vice President, Senator or Representative in the national congress … who has been or shall hereafter be engaged in any armed conspiracy or rebellion against the government of the United States.”

Sen. Lyman Trumbull of Illinois explained that the wording was intended “to put some sort of stigma, some sort of odium on the leaders of the rebellion.”

But the final form of the amendment provoked a question when it reached Congress. Doubtless it will be repeated and the answer debated during the Supreme Court’s scheduled Feb. 8 hearing on the Colorado Supreme Court’s decision to strike Trump from the state’s presidential ballot.

As enacted, the amendment makes no specific mention of the president or vice president, only of those offices’ electors. So can Trump be held accountable for a law that doesn’t specify the office he held?

During the debate over the amendment, Sen. Reverdy Johnson of Maryland was troubled by the omission. Did that mean it didn’t apply to President Johnson?

Sen. Justin Morrill of Vermont assured Sen. Johnson that the Reconstruction Committee had no such intention. “Let me call the Senator’s attention to the words ‘or hold any office, civil or military under the United States’, " Morrill said.

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