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Hiram Revels was the first African American to serve in the U.S. Senate. A commenter who would know says the credentials he took with him to Washington (to which he traveled in segregated rail cars and steamboats) are now on display at the Capitol Visitor Center. I don’t recall seeing the actual document, but here is a high-quality color photocopy of Revels’ Senate credentials:

Consistent with the official executive view of secession’s illegitimacy, Southern Congressional terms were later understood to have remained fixed and rotating, even if the seats were vacant. Revels was accordingly elected “for the unexpired term which commenced on the 4th day of March 1865, and which will end on the 4th day of March 1871,” though he resigned before his term would have ended. He served for just under a year. Click here for a fuller, crisper image of his credentials.

The debate over Revels’ qualifications occasioned a fascinating episode of Congressional constitutional interpretation. Article I, Section 5 provides that “[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members,” and judging Revels’ qualifications required the Senate to think critically about the place of Dred Scott v. Sandford (1857) in a post-Civil War world. Aside from the original debates in the Congressional Globe, the most complete resource on this topic is probably Richard Primus’ excellent article “The Riddle of Hiram Revels.”

Revels’ admission to the Senate was essentially a foregone conclusion. Although one senator asserted that the issue of Revels’ fitness was “not a political but a judicial question, and ought to be decided by us as judges and not as politicians,” all 48 of his fellow Republicans voted to receive him, while the chamber’s 8 Democrats supplied the only votes for exclusion. The most reasonable Democratic argument ran like this: “No Person shall be a Senator who shall not have . . . been nine Years a Citizen of the United States.” The Dred Scott decision, which denied that African Americans were or could become citizens of the United States, was the law until the Civil Rights Act of 1866 and then Section I of the 14th Amendment made territorial birthright citizenship the law of the land. Neither purported to operate retroactively, and fewer than nine years had elapsed since 1866 or 1868. Senators would thus be constitutionally remiss in allowing Revels to serve with them.

Here are several counter-arguments, either ones Republicans actually made or that Primus identifies as at least plausible (pardon inconsistencies in verb tense):

Dred Scott was wrong on the day it was decided (’twas “[b]orn a putrid corpse” and lingered as a “stench in the nostrils . . . to be remembered only as a warning and a shame”). Taney’s decision should be accorded the same level of respect its author claimed the founding generation showed to African Americans. Revels, born a free man, had been a citizen since birth.

—Lincoln’s election, Southern secession, Northern success in the Civil War, and the 13th, 14th, and 15th Amendments amounted to a radical break with the antebellum legal regime. Dred Scott had been “repealed by the mightiest uprising which the world has ever witnessed.” It was “impermissible to betray fundamental principles of the new order by giving legal effect to the fact that other principles—evil principles—had been applied at an earlier time. . . . it would violate the norms of 1870 to give continuing force to Dred Scott.”

—Revels was light-skinned and had more European than African blood. Even if Dred Scott were still authoritative, its holding should only apply to individuals of “pure African blood.” (Attorney General Edward Bates had issued an opinion to this effect in 1862.) Revels had at least some non-African ancestry, so he had always been a citizen.

—Implied retroactivity should be read into the Fourteenth Amendment’s Citizenship Clause. After that Amendment’s ratification, “[a]ll persons born . . . in the United States, and subject to the jurisdiction thereof” (of whom Revels was one) should be understood to have been citizens since birth.

—The nine-year clause should not be read literally. It was adopted to stifle the entry of foreign influence into Congressional deliberations. Revels had never sworn allegiance to a foreign sovereign; the concern underlying the nine-year requirement is completely inapplicable here, so the clause cannot be used to exclude him.

—The Supreme Court may have the last word on the definition of citizenship for purposes of satisfying the diversity-jurisdiction requirements of Article III, but Congress is equally empowered to define “citizen” for Article I purposes (especially when that process is inextricably linked to performing a duty the Constitution devolves exclusively on each house of Congress).

—The Constitution essentially forbade the judiciary from opining on the continuing vitality of Dred Scott in the context of the Revels affair; in this instance, the Senate was to be the supreme constitutional adjudicator. A fresh look at Dred Scott was necessary to settle the issue, so the Senate was “in a position analogous to that of the Supreme Court when deciding to overrule a prior decision.” Resolving to seat Revels and thus repudiate Dred Scott would only be “to do what the Court might have done had it had the opportunity.”

—A person’s having been a citizen for any nine years (not just the immediately preceding nine years) would apparently satisfy the requirement of Article I, Section 3. Even conceding that Dred Scott was the law from 1857-1868, it departed from a proper understanding of national citizenship and so temporarily changed the law of citizenship to inflict previously nonexistent disabilities. Revels lived many more than nine years under the pre-Dred regime, so he cannot be barred from serving on technical grounds.

–Rightly understood, the 15th Amendment conferred a cluster of political rights on African Americans. In addition to the textually explicit right not to be denied suffrage on account of race or previous condition of servitude, blacks cannot not now be denied the right to serve on juries or hold office because of those factors. To the extent that a class of individuals was once excluded from citizenship solely on account of race, that exclusion can now have no additive weight in the arithmetic of determining eligibility for federal office-holding.

Here’s a black-and-white version of Revels’ loyalty oath, which you can find on the last page of “The Riddle of Hiram Revels” (and maybe nowhere else):

The Supreme Court had ruled in Ex parte Garland (1866) that a virtually identical oath for persons wishing to argue before federal courts was doubly unconstitutional as a bill of attainder (“under which general designation bills of pains and penalties are included”) and an ex post facto law (the acts described in the oath weren’t so punishable when they were committed). That logic seems to apply in full force here. Unless I’m not familiar with a precedent that distinguished the one case from the other, the act of requiring Revels and others to affirm their recent political purity in order to serve in Congress indicates outright Congressional repudiation of yet another Supreme Court decision that stood in the way of the Radical Republicans’ agenda.

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