The real reason for the ex-Confederate resurgence in 1866 had more to do with national rather than local issues. Chief among these was the proposed 14th Amendment to the Constitution. Today the 14th Amendment is known chiefly for its Privileges and Immunities, Due Process, and Equal Protection clauses, which appear in this famous passage: "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor any state deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the law." The effect of this provision was to make the federal government the final arbiter of the rights of citizens and to grant it what amounted to veto power over unjust laws that might be enacted by the states.
While the equal protection provision was controversial given the states' rights inclination of the South, It was two other clauses of the amendment that drew the ire of ex-Confederates. One of these was Section 3: "No person shall be a Senator or Representative in Congress, or elector of President and Vice-President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid and comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability." This effectively barred former state officials in the Confederate states from ever again holding office.
Even more controversial was Section 2: "Representatives shall be apportioned among the several states according to their respective numbers, counting whole numbers of persons in each state, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a state, or the members of the legislature thereof, is denied to any of the male inhabitants of such state, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state."
This clause, in effect, repealed the three-fifths rule whereby Southern states had claimed their slaves toward representation in Congress. According to this provision, unless former slaves were accorded the right to vote, they could not be counted toward representation. While this clearly stopped short of granting the vote to African Americans, ex-Confederates considered it a step in that direction.
Moreover, where the Constitution had clearly excluded slaves from citizenship, Southerners found the racial neutrality of the Amendment's definition of citizenship disturbing: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside." This was a far cry from the Supreme Court's 1857 decision in the Dred Scott case that "a free Negro of the African race is not a citizen within the meaning of the Constitution of the United States." In any event Southerners chose to treat the 14th Amendment as if it were the first step down a slippery slope that must inevitably lead the black equality. Their actions in 1866 were predicated on the notion that the 14th Amendment must be defeated at all costs.
The resurgent ex-Confederates believed they were encouraged in this opposition both by the actions of Andrew Johnson and those of the national Democratic Party. They also realized that support for the Amendment was so weak in the rest of the country, that it needed almost unanimous support from the former states of the Confederacy in order to pass. What they failed to recognize was that the same election which had swept them back into power had also given the Radical Republicans a veto-proof majority in Congress.
Governor Murphy pleaded with his legislature to recognize that passage of the 14th Amendment was the condition that the Radicals were placing on Arkansas's readmission to the Union:
"This is the Congressional scheme of Reconstruction, and has been made the leading issue in the late election, and sustained by large majorities.
"Though not all that the insurgent states could desire, it becomes a very grave question for the legislature to decide whether any terms more favorable are likely to be obtained by any opposition, or whether it is not the better policy for the state to accept the proposed terms, and then secure the prompt reconstruction of the state into harmonious action with the governing states, and on equality with them in the Union.
"Judging from the results of the late elections, and from the decided tone of public sentiment in the states that subdued the insurrection, it is not probable that better terms will be granted. The effect of rejection, on the prosperity and happiness of the people of the state, demands solemn consideration."
The Arkansas General assembly voted the Amendment down.
Next: Congressional Reconstruction
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