The Riddle of Hiram Revels

Abstract

In the year 1870, the United States Senate conducted a three-day debate on the question of whether an African American man was eligible to sit as a senator. The major argument against his eligibility was that he had not been a citizen of the United States for nine years, as is required of Senators under Article I, Section 3. The reasoning was as follows: under Dred Scott v. Sandford, a black man could not be an American citizen. The Fourteenth Amendment rejected Dred Scott and established universal birthright citizenship, but it was ratified only in 1868. Accordingly, as of 1870, the would-be black senator had been a citizen for only two years.

The Senate's debate was major national news in its own day but has been completely forgotten in constitutional history. This Article recovers the debate and uses it to shed new light on central questions of constitutional law, including (1) whether the Civil War should be understood as a constitutional regime change or as a less far-reaching reform; (2) the relative roles of Court and Congress in constitutional interpretation; (3) the problems of transitional justice that arise when a racially exclusive constitutional system enfranchises members of another racial group but does so on terms set only by the initial insider group; and (4) the process by which some historical episodes rather than others come to shape our conception of constitutional history.

Keywords: Constitutional Law, Civil War, Reconstruction