Home
Constitutional Thinking
Punish Treason, Reward Loyalty

Punish Treason, Reward Loyalty

The Forgotten Goals of Constitutional Reform After the Civil War. Volume 1: the Forgotten Fourteenth Amendment

by Mark A. Graber

Published by: University Press of Kansas

Series: Constitutional Thinking

Imprint: University Press of Kansas

416 Pages, 152.00 × 229.00 mm, 8 tables

Paperback
9780700639496
Published: January 2025

£22.99

Buy

Hardcover
9780700635030
Published: July 2023

£48.00

Buy

Description
Contents
Authors
Praise

In contemporary constitutional politics, Section 1 of the Fourteenth Amendment—which includes the citizenship, privileges and immunities, due process, and equal protection clauses—is the star of the show. But this was not the focus for the Republican members of the Thirty-Ninth Congress. Their interest was instead in Sections 2, 3, and 4. Today we tend to think the purpose of the Fourteenth Amendment was to protect persons of color. But the Republicans engaged in Reconstruction saw its purpose as preventing “rebel rule” by punishing treason and rewarding loyalty, particularly the loyalty of white men who remained faithful to the Union during the Civil War.

In this first of three planned volumes for the University Press of Kansas’s Constitutional Thinking series, Mark A. Graber aims to restore to contemporary memory the Fourteenth Amendment drafted by those Republican and Unionist members of Congress who supported congressional reconstruction.

In Punish Treason, Reward Loyalty, Graber breaks new ground researching Reconstruction, the Fourteenth Amendment, and constitutionalism by highlighting the importance of Sections 2, 3, and 4 to the representatives in the Thirty-Ninth Congress and their relative indifference to Section 1. His work underscores the importance and impact that legislative primacy and partisan supremacy had to Republican constitutional thinking about constitutional authority immediately after the Civil War.

Centered on Reconstruction and constitutional reform, Graber shows anew the Republican effort to prevent rebel rule by empowering and protecting loyalty.

Text of Amendment XIV (1868)

Series Foreword

Acknowledgments

A Preface to the Forgotten Fourteenth Amendment Series

Introduction: Three Republican Soloists and the Republican Chorus

1. The Exclusion Debate

2. The Problem of Rebel Rule

3. Protecting and Empowering the Loyal

4. Guarantees

5. To Colorado and Beyond

Conclusion: Rebels, Loyalists, and Racial Equality

Appendixes

Table A.1: House Votes on the Fourteenth Amendment, the Exclusion Resolution, and Statehood for Colorado and Nebraska
Table A.2: Senate Votes on the Fourteenth Amendment, the Exclusion Resolution, and Statehood for Colorado and Nebraska
Table A.3: References to “:Rebel” and “Loyal” in the House of Representatives
Table A.4: References to “Rebel” and “Loyal” in the Senate
Table A.5: References Paired with “Rebel” in the Thirty-Ninth Congress, First Session: All
Table A.6: References Paired with “Rebel” in the Thirty-Ninth Congress, First Session: Opponents of the Fourteenth Amendment
Table A.7: Conditions for Readmission of Former Confederate States: Members of Congress
Table A.8: Conditions of Readmission of Former Confederate States: Petitions

Calendar of the Thirty-Ninth Congress, First Session

Notes

Index

Mark A. Graber is Regents Professor at the University of Maryland Carey School of Law and author of A New Introduction to American Constitutionalism, Dred Scott and the Problem of Constitutional Evil, and Rethinking Abortion, among other books.

In meticulous detail Mark Graber shows how in the run-up to the adoption of the Fourteenth Amendment congressional Republicans shaped the provisions eventually written into that provision with an eye to ensuring control of the government by Unionists, which is to say Republicans. He reorients our understanding of the Fourteenth Amendment away from the rights it undoubtedly guarantees to the political effects its framers sought to achieve, among which were Unionist control of state governments so that rights could be protected. Though today we do not pay much attention to the sections of the Fourteenth Amendment its framers cared most about, Graber’s arguments tell us a great deal about how we should understand what constitutions actually do."— Mark Tushnet, William Nelson Cromwell Professor of Law, emeritus, Harvard Law School, and author of The Constitution of the United States of America: A Contextual Analysis
"Mark Graber has opened our eyes not only to a lost history of the Fourteenth Amendment, but also to its Framers’ central purpose. They sought to create the conditions for a democratic politics that would protect and empower people, both Black and white, who had remained loyal to the Union during the Civil War. This brilliant book, part of a projected multi-volume series, teaches that the way we shape our political institutions is every bit as important as abstract guarantees of constitutional rights."— Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School