IN EARLY 1864, AS THE CIVIL WAR APPROACHED ITS THIRD bloody anniversary and the eventual defeat of the Confederacy began to seem assured, the United States—and Abraham Lincoln—at last decided to deal with slavery. The Constitution had allowed it, the Supreme Court in Dred Scott v. Sandford had reinforced it, and Lincoln’s Emancipation Proclamation of January 1863 had prolonged it by not freeing slaves in any state that had remained in the Union.
It took until January 1865, but then, over strong opposition from the Democratic Party, the House of Representatives, on its second try, passed by the required two-thirds vote a new amendment to the Constitution—the Thirteenth—which would abolish, once and for all, in every corner of the nation, the practice of human slavery. (The Senate had approved the amendment in April 1864.) Although the president plays no official role in amending the Constitution, Lincoln had persuaded, flattered, and threatened reluctant congressmen to obtain the required majority. In December 1865, with the Confederacy a memory and President Lincoln dead, the amendment was ratified by the required three-quarters of the state legislatures and became law.
But the end of slavery did not mean the beginning of racial equality. The task of integrating four million newly freed slaves into the fabric of free society was, under any circumstances, a nigh impossible task—no society in history had ever been faced with such a challenge. In post–Civil War America, achieving such a goal—the nature of which many in the country already defined differently—would be made that much more difficult by the presence of Abraham Lincoln’s successor, Democrat Andrew Johnson of Tennessee.
Johnson was hardly the right man for a task that demanded incisive intellect, a keen sense of proportion, a flair for problem solving, a deft political hand, sensitivity to injustice, and, most importantly, racial tolerance. He seemed to be guided by two fundamental principles, each of which would frame his program of what became known, at least in the North, as Reconstruction.
The first was a profound and abiding racism. His antipathy to slavery was not as a moral evil, but that it facilitated an arrogant landed aristocracy, a “slaveocracy” as he put it. From poor origins himself, the epitome of the self-made man, Johnson loathed the planters, with their ostentatious wealth and airs of social superiority. But he loathed black people every bit as much and had no intention of allowing them to pollute white Christian society. He said in a speech to Congress:
If anything can be proved by known facts, if all reasoning upon evidence is not abandoned, it must be acknowledged that in the progress of nations negroes have shown less capacity for government than any other race of people. No independent government of any form has ever been successful in their hands. On the contrary, wherever they have been left to their own devices they have shown a constant tendency to relapse into barbarism . . . I repeat the expression of my willingness to join in any plan within the scope of our constitutional authority which promises to better the condition of the negroes in the south, by encouraging them in industry, enlightening their minds, improving their morals, and giving protection to all their just rights as freedmen. But the transfer of our political inheritance to them would, in my opinion, be an abandonment of a duty which we owe alike to the memory of our fathers and the rights of our children.1
The second, a perfect complement to the first, was a commitment to federalism, a belief that the central government’s authority over the states was severely limited. Except in those functions specifically prescribed by the Constitution, states should be free to act in whatever manner they pleased. Although states could no longer countenance slavery, nothing in the Constitution prevented a state from enacting laws that were blatantly discriminatory and allowed the white population to maintain virtually the same degree of control over African Americans that they had before 1860.
These laws, called Black Codes, mandated such contrivances as forced labor contracts, binding a worker to an employer on pain of criminal penalty or forfeiture of a year’s back wages; forbidding African Americans to carry knives or guns; setting sunup to sundown working hours; allowing corporal punishment of workers; and creating standards for vagrancy that would apply to virtually every black agricultural worker not tied to a white employer. Strict racial segregation would also be enforced in schools, public buildings, and cemeteries.
Johnson also believed, as had Lincoln, that secession was illegal. The Civil War, therefore, had been a police action, not a war with a foreign power. As such, the eleven states of the Confederacy had never left the Union. “It is clear to my apprehension,” he wrote in a letter to Congress,
that the States lately in rebellion are still members of the national Union . . . The ‘ordinances of secession’ adopted by a portion (in most of them a very small portion) of their citizens, were mere nullities . . . Were those States afterwards expelled from the Union by the war? The direct contrary was averred by this government to be its purpose, and was so understood by all those who gave their blood and treasure to aid in its prosecution. It cannot be that a successful war, waged for the preservation of the Union, had the legal effect of dissolving it.2
This notion was hardly outrageous. In 1862, since secession was not recognized, the fifty-seven seats in the House of Representatives that had been granted to the eleven Confederate states (out of 241 total) were kept on the roster, but they remained empty since no one had been sent to fill them.
If the states had never left, it followed then that they would not need to petition for readmission and could just fill those congressional seats, which is precisely what Andrew Johnson thought they should do. With the Black Codes in place, and no federal voting guidelines or guarantees in the Constitution, it seemed certain that those seats would be filled almost entirely by white secessionist congressmen elected by white supremacist voters.
And there would be more white secessionist congressmen than there had been in 1861. The Apportionment Act of 1862, which had assigned those fifty-seven of the 241 seats in the House of Representatives to the eleven states that had seceded, had been based on the old three-fifths rule, which counted three out of every five slaves when determining a state’s congressional delegation. By ending slavery, however, the Thirteenth Amendment rendered that formula extinct. Since there were no longer “other persons” (as slaves had been termed), any future apportionment had to be based on a full counting of African Americans—an additional 1.6 million people, which translated into thirty-seven seats. The South, “as a result of losing the Civil War,” would gain apportionment and “be entitled to an increase in membership in the House of Representatives and the Electoral College.”3
Republicans in Congress saw things differently. By seceding, Southern states had abrogated the terms under which they had joined the Union and nullified whatever privileges the Constitution had bestowed. They might apply for readmission, certainly, but under the terms dictated by the government of the United States, from which they were, at that moment, excluded. In addition, the sin of slavery needed to be atoned for, and that would hardly be achieved by coddling the very men and women who had perpetrated the bloodiest war in the nation’s history. For most Northerners, America’s two most urgent priorities were the care of the millions of returned or returning war veterans, and the integration, in some fashion, of nearly four million newly freed slaves into the mainstream of American life.
The question was how, and under what terms? For a radical segment of the Republican Party, led in the House of Representatives by Thaddeus Stevens of Pennsylvania and in the Senate by Charles Sumner of Massachusetts (who, for his abolitionist stance, had once been beaten nearly to death by a cane-wielding South Carolina congressman on the Senate floor), this meant nothing less than to remake the South to a new set of political, socioeconomic, and especially moral specifications. The abolition of slavery was not enough. The nation must banish all traces of racial discrimination. African Americans in the conquered South must be granted full and equal citizenship with whites, and, for the first time, be sent to school, hold public office, sit on juries, own businesses, and walk or ride freely in any state in America.
To pay for this vast array of social programs, Radicals insisted that the United States confiscate the assets of Confederate leaders, applying any cash proceeds to the payment of the war debt, the pensioning of Union soldiers, and distribution of land to freedmen. Stevens’s plan was to nationalize any estates whose lands exceeded 200 acres or were worth $10,000 or more. Each adult freedman would then be given “40 acres and a mule,” an expansion of the program William Tecumseh Sherman had initiated during the war. Of the remaining acreage, which would be worth approximately $3.5 billion, Stevens wanted $300 million invested in 6 percent government bonds, with the interest applied to pensions of war veterans and their dependents; $200 million used to reimburse Union loyalists for property damages; and the remaining $3 billion applied to pay down war debt.4
To Stevens and his fellow Radicals, equality for the freedmen transcended party or politics; it was a paramount ethical issue, one that would define the very character of the United States. Without redress for the evils of slavery and the successful integration of the freedmen into American society, the United States would remain a damned nation. Stevens proclaimed,
We have turned or are about to turn loose four million slaves without a hut to shelter them or a cent in their pockets. The infernal laws of slavery have prevented them from acquiring an education, understanding the commonest laws of contract, or managing the ordinary business of life. This Congress is bound to provide for them until they can take care of themselves. If we do not furnish them with homesteads, and hedge them around with protective laws; if we leave them to the legislation of their late masters, we had better have left them in bondage.5
Their first skirmish with an equally intractable president took place in December 1865, when, with Johnson’s encouragement, the eleven former slave states did indeed send representatives to Congress. Each one was white, as had been just about every voter who elected them; a former Confederate; and determined to protect the Black Codes. One of these would-be congressmen was Alexander Stephens, former vice president of the Confederacy. While the white Southerners waited to take their seats, the men in charge of both the House of Representatives and the Senate refused to call their names during the roll call. Thaddeus Stevens told them that they were from “conquered provinces” and not entitled to sit in Congress. The Southern delegates trudged out, leaving Andrew Johnson furious.
Underlying this conflict was the Radicals’ intention to subordinate the Tenth Amendment to a new definition of federalism. In vanquishing the Confederacy, the national government had vastly increased both its size and its power over individual states. Washington was suddenly in a position to exercise unprecedented authority over state governments, particularly in those states that would be reconstituted as a condition for readmission to the Union.
Even before the war ended, eager reformers, both church and lay, had moved from North to South, preparing to launch perhaps the greatest experiment in social engineering ever attempted. They would teach, feed, and organize the freedmen. Not only would they integrate millions of erstwhile slaves into society as full and equal citizens, but they would forge and hammer the entire fabric of the plantation economy into a new, progressive, egalitarian order. It was this process that Radicals intended to protect and encourage.
To do so, on April 9, 1866, overriding Andrew Johnson’s veto, Congress passed “An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.”
The new law gave the federal government jurisdiction over state social policy for the first time. It was aimed unapologetically at Black Codes, and provided substantial guarantees for the rights of freedmen, starting with the most fundamental right of all: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Also guaranteed were right of contract, access to the legal system, and the right to employment for all citizens, black and white, and to “full and equal benefits of all laws and proceedings for the security of person and property.”6 Denial of any of these rights became a federal crime, enforceable according to federal law, in federal courts. With the exception of the removal of jurisdiction to federal courts, the bill’s guarantees were pretty much in line with what a majority of the nation thought was fair. Democrats, of course, particularly in the South, demurred, complaining that the bill was a gross violation of states’ rights, and a violation of the principles under which the United States was founded.
What was missing was a guarantee of the right to vote, which, had it been included, would have doomed the bill to failure. The prospect of hundreds of thousands of illiterate, socially and politically backward black men flooding to the polls was anathema to Democrats and moderate Republicans alike, and was even too radical for most Radicals. “When was it ever known that liberation from bondage was accompanied by a recognition of political equality?” asked one. “According to the laws of development and progress, it is not practicable . . . as soon as the state was organized and left to manage its own affairs, the white population, with their superior intelligence, wealth, and power, would unquestionably alter the franchise in accordance with their prejudices.”7 The speaker was no conservative, but rather William Lloyd Garrison, publisher of The Liberator and the man who termed the United States Constitution “a Covenant with Death and an Agreement with Hell” for its failure to end slavery in America.
Charles Sumner favored a literacy requirement for African Americans, a restriction that, even if applied without contrivance (as opposed to the approach Southern states took later), would guarantee that only a tiny portion of the black population would qualify to vote. Even Thaddeus Stevens, the ultimate firebrand, was hesitant to allow freedmen immediate access to the voting booth. Nor could those few in favor of granting the franchise to African Americans point to their more emancipated status in the North, since only five Northern states extended the franchise to blacks.
But, as anyone who could count was also aware, the days of considering the philosophical niceties of African American suffrage had ended in December 1865 with the ratification of the Thirteenth Amendment. Some formula for readmitting the Confederate states into the United States—assuming they ever had left—was certain to be developed, as were conditions for allowing former Confederates to take their places as citizens.
Enfranchising freedmen was therefore a matter of necessity rather than morality. If blacks were counted for apportionment but could not themselves go to the polls, white Democrats would dominate in the South and wield a good deal more power in Congress than they had before the war. So, in addition to integrating four million former slaves into society, even moderate Republicans realized that it was equally important to find a way to reintegrate eleven states and their white secessionists into that same society, all the while not threatening Republican control of Congress and eventually the presidency. At the very least, readmission on both an individual and state level would require acquiescence to the Radical program, including civil equality for African Americans and the willingness to grant the vote to a sufficient number to ensure Republican Party dominance. To lessen the Democratic vote, Radicals had no qualms about also taking the vote away from whites. Anyone who had fought for or abetted the rebels, as they saw it, had forfeited the privileges of citizenship, including the right to vote.
But there were complications. Andrew Johnson’s veto of the Civil Rights Act—which he insisted was on the basis of states’ rights—demonstrated to Republicans that the mandates embodied within it might well be transitory, subject to the whim of whoever sat in Congress or the White House. Thus Republicans, now moderate as well as Radical, saw the necessity of situating these principles in a place where Johnson, who was scheduled to remain in office until early 1869, and the Democrats could not get at them.
Transplanting the Civil Rights Act into the Constitution, however, was an extreme step, one that would engender fierce debate and many rounds of horse-trading. Spearheading the effort was John Bingham, a congressman from Ohio and one the nation’s great champions of equal rights. Bingham’s goal, he said later, was “a simple, strong, plain declaration that equal laws and equal and exact justice shall hereafter be secured within every State of the Union.”8 In addition, he intended that with this amendment, the “privileges and immunities” of citizenship guaranteed in the Bill of Rights, which had originally only applied to federal law, would now be binding on the states.
The draft that emerged from a joint congressional committee seemed to do just that and, for the first time, enabled sweeping federal power over the states, a direct challenge to the Tenth Amendment.
Section 1, which flowed directly from Bingham’s pen and from which reams of jurisprudence have emanated, was essentially an enhancement of the Civil Rights Act:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall 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 laws.
The second section went to the heart of the pragmatics of black voting.
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 the 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.
Thus, any state that chose to deny freedmen the right to vote would lose the bonus representation that had accrued to them through their non-voting black population.
The third section barred former Confederates from serving in state or national government, the criteria being broad but vague, and capable of being set aside, on a case-by-case basis, by a two-thirds majority of both houses of Congress. The fourth section voided any claims against the United States for loss of slaves or other Confederate property, and the fifth empowered Congress to pass legislation to enforce any of the other provisions.
Significant in both the gist and the wording of the amendment was the enforcement role of the courts and the reliance Congress had placed on the federal judiciary as the avenue through which those whose civil rights had been violated might seek redress. For the first time in American history, laws enacted by state legislatures that were seen to be racially discriminatory could be overturned in federal court. By investing the judiciary with this guardianship role, whichever party was dominant in Congress would no longer be relevant. Civil rights enforcement would have been constitutionally removed from partisanship.
After bouncing back and forth for months, the House endorsed a Senate version of the amendment on June 13, 1866, in a strict party-line vote of 120–32. The mood was as much relief as exhilaration. The New York Times observed, “The adoption by the House of the proposed Constitutional Amendment, as modified by the Senate, will, we trust, terminate all irritating discussion on the question of reconstruction.”9 The Hartford Courant added, “The amendment has been cleansed of Mr. Stevens’ obnoxious ideas and is in good shape . . . Let Connecticut be the first state to ratify it.”10 Connecticut was indeed first, but the amendment needed to be ratified by three-fourths of the states.
Once more the question of the legality of secession became paramount, since the pool of states from which the three-fourths would be drawn was not clear. Andrew Johnson’s view that the secessionist states were still part of the Union had been repudiated by Congress when Southerners were denied their duly apportioned seats by this very same Thirty-Ninth Congress in 1865. Yet to ignore the eleven states entirely seemed equally unpalatable. When Thaddeus Stevens proposed limiting ratification to Northern states, even his fellow Republicans balked.
Computing the three-fourths with Andrew Johnson’s white supremacist governments in place in the South, however, presented what seemed an unconquerable obstacle to ratification. Once the amendment was ratified, Southern states would be faced with two extremely distasteful options: accept black voters and gain representation but risk that the added representatives would be Republicans or, even worse, Negroes; or deny freedmen the vote and accept diminished influence. There seemed only two alternatives under which Southern state legislatures would accept the Fourteenth Amendment: either make ratification a precondition for readmission to the Union, or change the legislatures.
Compounding the problem was the fervent opposition of Democrats, Northern as well as Southern, and fear, even among some Republicans, of such a drastic increase in the power of federal government. As a result, as the 1866 elections approached, in which Democrats were projected to make significant gains—perhaps even to take back Congress—only a woeful five states had ratified the amendment.
But the projections were wrong. Perhaps it was the nation’s growing distaste for Andrew Johnson, but Republicans secured enough seats to maintain veto-overriding two-thirds majorities in both houses of Congress. Even more surprising was that after the election, many previously antipathetic congressmen seemed to change their positions on black suffrage simply to avoid identification with Johnson.11
Although the Fourteenth Amendment received a boost in support—fourteen more states ratified in the first three months of 1867—there was still no clear path to enactment. Most Southern state legislatures had rejected it out of hand (except Tennessee, which to Andrew Johnson’s frustration had ratified in July 1866), and they had little incentive to change their view. Without them, the amendment was doomed. The solution was clear. If one could not persuade sitting governments to ratify the amendment, it would, as the Radicals had insisted, be necessary to change the governments.
The first step was the passage, in early March 1867, of “An Act to Provide for the More Efficient Government of the Rebel States,” dubbed almost immediately the “Reconstruction Act.” Its opening sentence read: “Whereas no legal State governments or adequate protection for life or property now exists in the rebel States of [all secessionist states were listed, except Tennessee]; and whereas it is necessary that peace and good order be enforced in said States until loyal and republican State governments can be legally established: Therefore . . .”12 The “therefore” was a division of the ten secessionist states into five military districts, each commanded by no less than a brigadier general, and a direction to those commanders to “protect all persons in their rights of person and property, to suppress insurrection, disorder, and violence, and to punish, or cause to be punished, all disturbers of the public peace and criminals.” A commander was authorized to empower civil courts or, if he chose, military tribunals to deal with offenders. Only death sentences were subject to review, and those by the president.
Section 5 of the law required each of the ten states to “form a constitution . . . in conformity with the Constitution of the United States in all respects.” State constitutions were to be drafted by “male citizens, twenty-one years old and upward, of whatever race, color, or previous condition.”13 The resulting document would then need to be approved by Congress. When a state’s constitution had been approved and a legislature formed, the state would be required to ratify the Fourteenth Amendment. Ratification thus became a de jure condition for readmission to the Union.
Although the law appeared to insist on color-blind male suffrage, there was no prohibition on states demanding certain qualifications for the franchise, as long as those qualifications were applied evenhandedly to all applicants. Literacy, lineage, poll taxes: all of these would be permissible under the law, as they would be under the Fourteenth Amendment. Of course, any attempt to skirt past the intent of this law, to disfranchise potential voters based only on race, would, so its sponsors believed, be given short shrift by the federal courts.
Andrew Johnson vetoed the bill virtually the moment it arrived at his desk. (He had complained to a newspaperman that whites “were being trodden under foot to protect niggers.”14) Just as quickly, Congress overrode the veto.
After the Fortieth Congress was seated on March 4, 1867, work began immediately on a supplement to the Reconstruction Act designed to ratchet up pressure on both the secessionist states and the president. Within three weeks, both houses had passed a bill requiring that by September 1, 1867, the commanding general of each of the five military districts register every male twenty-one or over who was not disqualified from voting under Section 3 of the Fourteenth Amendment to vote on whether or not to hold a constitutional convention. The bill further laid out specific rules of how these conventions would be elected, and the procedures for having new state constitutions drafted and approved. Significantly, the entire process was to be overseen by the army, so that no artificial impediments to registration might be erected. Implicit in the bill was that, for the first time, African Americans—the men at least—would have unfettered access to the ballot box.
Predictably, Andrew Johnson vetoed the measure and both houses promptly overrode the veto, the House by a vote of 114–25 and the Senate by 40–7. Congress did not even give Johnson the courtesy of a hearing. “Not a word of debate; merely the reading of the [president’s] message, the recording of the yeas and nays, and the business ends.”15
The second Reconstruction Act flung open the door to legal equality. Across the South, Union Leagues, sometimes called Loyal Leagues, were organized, usually with the help of sympathetic whites, for the express purpose of initiating African American men into the political process. Black men registered to vote by the thousands and asserted their civil and property rights, and adults and children of both sexes attended schools sponsored by either the government’s Freedmen’s Bureau or private agencies.
With virtually all black men registering as Republicans, thousands of former “rebels,” all Democrats, denied suffrage, and the army supervising the elections of constitutional convention delegates, the results were assured. New constitutions were drafted and then approved by Republicans. The Johnson-appointed governments were kicked out, replaced by Republican-controlled state legislatures that represented only a small minority of the white population, but almost every black voter.
The Fourteenth Amendment was, as required for readmission into the Union, ratified under these new state constitutions and thereby incorporated into the United States Constitution. As a result of the Reconstruction Acts, the prospect of the additional seats in the House of Representatives the South received being filled by Democrats seemed to have been eliminated. As The New York Times reported on July 10, 1868, the day after official ratification of the Fourteenth Amendment, the measure
settles the matter of suffrage in the Southern States beyond the power of the rebels to change it, even if they had control of the government. Its potent provision is that where any portion of the citizens of a state are denied the right of suffrage for any cause but crime, duly established, said citizens will not be counted in the basis of representation. If South Carolina concludes to return to a white man’s government, she reduces her representation from five to two.16
Thousands of black Americans went to the polls, voting for the first time, and, newly empowered, both freedmen and free-born, they soon realized that they not only could vote for those seeking elective office, but could seek elective office themselves. Throughout the old Confederacy, more than 2,000 people of color would hold office during Reconstruction.17 Almost 200 of these would be on the federal level, including two senators, fourteen representatives, eleven United States deputy marshals, three treasury agents, and two ambassadors. There were also African American postmasters, census takers, land office agents, customs officials, and timber agents. On the state level, more than 800 served in the legislature, and 300 were elected as delegates to constitutional conventions. There were militia officers, secretaries of state, superintendents of education, state treasurers, land commissioners, and one deputy physician in a lunatic asylum. One man, P. B. S. Pinchback, served as governor of Louisiana, if only for a few days.
The social fabric in much of the South began to change. It was not uncommon for blacks and whites to work together, especially on the local level. In some cases, they sent their children to same schools; in others, they served on town boards. Cities like Wilmington were not the rule, but nor were they specks in a vast ocean. For a time, Reconstruction, fragile though it was, seemed, just possibly, on the verge of creating not only a new South, but also a new America.
But there were many Southern whites who had no intention of ceding or even sharing political power with people of color, no matter what it said on a piece of paper.