Testing the Constitutionality of the Reconstruction Act

April 4, 1867


Before the new Reconstruction Act is passed, there is a group of men who believe that the bill should be tested of its constitutionality. While this is a good idea, in theory, the Supreme Court has the ultimate power of declaring constitutionality, and they might turn the case around and declare Southern Governors unconstitutional in their actions.


A Washington telegram to the New York papers informs us that "several southern men now in that city, assisted by eminent legal advisers," propose to test at once the constitutionality of the military reconstruction act by bringing an issue before the Supreme Court at its present term. This is to be done by enjoining General Pope and President Johnson not to enforce the act, upon the ground that it is unconstitutional. It Is even stated that the motion for this injunction will, "it is not improbable," be made tomorrow. Reverdy Johnson, however, who is one of the best lawyers in the United States, is said to have given it as his opinion that the motion will be overruled at once upon the ground that in such a case the court has not original jurisdiction, that is, can hear such a case only when it comes up from a court below by way of appeal. His opinion is based of course upon the following clause of the Constitution (article III., section 11., paragraph 2): "In all cases affecting ambassadors, other public ministers, and consuls, and those in which a State shall be a party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned (that is, all sorts of cases between individuals], the Supreme Court shall have appellate jurisdiction both as to law and fact, with such exceptions and under such regulations as the Congress shall make." It seems to be doubted whether any State would be a party in the case supposed and proposed; but even if it were attempted to make some State a party, the right of the person or persons claiming to act for the State must first be established. For instance, the acting governor of the State might apply for an injunction ; but if the point were made that such person was himself claiming an authority which did not rightfully belong to him, and was a mere "pretended" or "socalled" governor (as the reconstruction act recites), the court might come to the conclusion that the objection was well taken. Is there a constitutional governor in any southern State? Does Chief Justice Chase, or any other judge upon the supreme bench, hold the States organized upon conditions dictated by the President to be such States as have the right to come into the Supreme Court as parties toa suit? We do not know ; but we do know that courts are always disposed to lean towards the Government in all cases in which questions of "public policy" are involved. The highest courts in England, a country noted for the learning, the purity, and the independence of its judges, held that Oliver Cromwell's laws must be respected and obeyed. A Lord Chancellor once went over from the Parliamentary side to that of the King. Of course there were good reasons for such conduct, as that Cromwell's was a de facto government the impossibility of resisting the "will of the nation;" and, in the latter case, the justice of the King's cause. Judges are but fallible beings, and are often swayed bv prejudices. Reverdy Johnson, a man of conservative principles, if not of southern sympathies, has declared that the congressional policy and the President's are equally unconstitutional. If such be his opinion, we may well suppose that the Supreme Court, as at present organized, will be very slow to pronounce in favor of the latter and against the former. We quote the following: "Should there be a concurrence of opinion among constitutional lawyers against this question of jurisprudence, the gentlemen praying for the injunction may not present it to the Supreme Court, but will await a case now being made up in Alexandria, Va., which will come up through the District Court of that State on a regular appeal to the Supreme Court of the United States. All of the Executives of the ten southern States but three have been consulted, and give their consent to any proceeding which will test the constitutionality of the reconstruction act. Governor Patton, of Alabama, however, declines to take any action in the premises, and is represented as being in favor of the law." A concurrence of opinion "against this question of jurisprudence"! Was ever such nonsense heard of? We suppose the words ought to be, "upon this question of jurisdiction." The case would be a very important and interesting one, and we should be pleased to see it before the Supreme Court. But we do not believe that we shall have that pleasure. P. S.--The Baltimore Sun of yesterday brings us the following telegram from Washington : "There is not one word of truth in a telegraphic dispatch sent north that the President is advised of an intention or purpose to go before the Supreme Court, or aid or connect himself with any movement to procure an injunction to restrain action under the reconstruction laws.
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Walker Black




“Testing the Constitutionality of the Reconstruction Act,” Reconstructing Virginia, accessed March 30, 2023, https://reconstructingvirginia.richmond.edu/items/show/564.