Posted by Paul Andrew Mitchell, B.A., M.S. on September 12, 1998 at 18:37:44:
"After the Thirteenth Amendment abolished slavery
throughout the United States in 1865, almost all
freed blacks were without property or education,
and most white southerners bitterly opposed
any fundamental improvement in their political
and social status. In 1865-1866 southern
legislatures enacted the highly discriminatory
black codes, and proponents of racial equality
responded by calling for new federal laws.
"Congress, using its new authority under the
Thirteenth Amendment, overrode President Andrew
Johnson's veto to pass the first Civil Rights Act
on April 9, 1866. This law conferred citizenship
on African Americans, a measure necessitated by
the Supreme Court's Dred Scott decision (Scott v.
Sandford, 1857). The law included a list of
enumerated rights, including the right to make
and enforce contracts, to sue and give evidence
in court, and to purchase and inherit all forms
of property. It also punished public officials
if they used their legal powers to deny equality
to blacks. Since the law's constitutionality
was questionable, many of its major provisions
were incorporated into the Fourteenth Amendment."
[Confer at "Civil Rights Acts of 1866-1875" in
"American Justice," Pasadena, California,
Salem Press, Inc. (1996), Joseph M. Bessette,
consulting editor, Volume I, page 152]
Paul Mitchell comments:
For our purposes here, the anonymous author of
this excellent and accurate summary is correct
to say that the 1866 Civil Rights Act conferred
citizenship on African Americans. He goes on
to state that this Act's constitutionality was
What he fails to discuss, however, is that this
Act conferred federal citizenship, not state
Citizenship, and was constitutional insofar
as it was a municipal statute, enacted under
federal plenary, municipal authority. Congress
can create a municipal, political franchise,
as long as Congress does so under its
plenary, municipal authority. See 1:8:17;
This Act very clearly identified "citizens
of the United States" and its language leaves
no doubt that the benefits granted were intended
for Americans of African descent, i.e. blacks.
There is no suggestion in this Act that blacks
were being granted state Citizenship also,
because the Dred Scott decision had made it
clear that a constitutional amendment would
be required to bring blacks into this class
of Citizens. Congress cannot amend the
U.S. Constitution by means of statutes;
Congress can only enact a statute which
proposes a constitutional amendment to the
several states of the Union.
Using hindsight, we can and should speculate
why it was that Congress proposed the 14th
amendment, instead of using the far superior
language found in the 15th Amendment. Using
this latter Amendment as our guide, we can
suggest a modern replacement for the failed
14th amendment, as follows:
"The status of Citizen of the United States
shall not be denied or abridged by the
United States, nor by any State, on account
of race. Congress shall have power to
enforce this provision by appropriate
legislation. The Fourteenth Amendment
is hereby repealed."
That is the Amendment I would have proposed,
instead of the 14th amendment; and that is
the Amendment I will propose, in the event
that I am elected to the U.S. House of
I should hope by now that the reader now
knows the all-important difference between a
"Citizen of the United States" (state Citizen) and a
"citizen of the United States" (federal citizen).
A "Citizen of the United States" [sic] is
a "Citizen of ONE OF the States United".
See People v. De La Guerra for authority;
also Words and Phrases under "Citizen".
This term is found in the Qualifications
Clauses (1:2:2, 1:3:3, 2:1:5), and also
in 3:2:1 and 4:2:1. Congress cannot amend
the U.S. Constitution. See Eisner v. Macomber
for authority on this latter point.
/s/ Paul Andrew Mitchell, B.A., M.S.
Counselor at Law, Private Attorney General
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