Document Type

Article

Publication Date

2006

Abstract

In 1870, a black man named Hiram Revels was named to represent Mississippi in the Senate. Senate Democrats objected to seating him and pointed out that the Constitution specifies that no person may be a senator who has not been a citizen of the United States for at least nine years. Before the ratification of the Fourteenth Amendment in 1868, the Democrats argued, Revels had not been a citizen on account of the Supreme Court's 1857 decision in Dred Scott v. Sandford. Thus, even if Revels were a citizen in 1870, he had held that status for only two years. After three days of heated and highly publicized debate, the Senate voted to admit Revels. Modern constitutional law has entirely forgotten the Revels debate. In this Article, Professor Richard Primus recovers the episode and analyzes the Senate's proceedings as an instance of nonjudicial constitutional interpretation. He shows how examining our modern intuitions about the Revels debate can prompt us to endorse certain principles of constitutional interpretation, in particular the notion that the Civil War altered the antebellum constitutional regime and the idea that legislatures should be empowered to interpret constitutional provisions flexibly under certain conditions of transitional justice. Professor Primus then uses these principles to criticize the Court's 1883 ruling in the Civil Rights Cases.