AS THE CONVENTION/CONGRESS ended its special session in early spring, Republicans could look back on a period of creativity rivaling the Founding. From their first post-War meeting, they had signaled their unconventional claim to popular sovereignty by barring Southern Congressmen. When their rightful possession of Capitol Hill was challenged by the President, they used the election of 1866 to demonstrate that the People supported their higher lawmaking pretensions. When the President encouraged the Southern states to veto the Fourteenth Amendment, they triggered another round of ratification activity in their unprecedented Reconstruction Acts.
At each stage of the unfolding process—signaling, proposing, triggering—the Republicans impressed new higher lawmaking meanings upon familiar institutional materials. The emerging pattern was far more nation-centered than in 1787. Article Five supposed that a Philadelphia-like body would dominate national life only at the request of two-thirds of the states. But the Convention/Congress signaled its higher lawmaking authority by excluding almost one-third of the states from their seats. Article Five assumed that Congress or a convention would be the sole important actor on the federal level. But the Fourteenth Amendment was the product of an ongoing struggle between the President and Congress. Article Five limited Congress’s function to determining whether state conventions or legislatures should engage in the task of ratification. But the Convention/Congress had gone far beyond this after its claims to speak for the People had been vindicated in a triggering election.
And yet, after all was said and done, the fate of the Fourteenth Amendment remained in doubt. The most obvious source of resistance was the all-white South governments established by Presidents Lincoln and Johnson. According to the Reconstruction Acts, Southern approval of the Fourteenth Amendment would only come at the end of an elaborate state-building process involving the federal registration of a black-and-white electorate, and repeated shows of popular support in the formation of a new constitution and the election of a state legislature. During all this time, all-white power structures continued as “provisional” governments “subject to the paramount authority of the United States at any time to abolish, modify, control or supersede the same.”1 But if the Union Army did not choose to exercise its “paramount authority,” the old governments had every incentive to disrupt the elaborate state-building process, as did white vigilante groups. The statutory call for a stately ritual of democratic deliberation, culminating in approval of the Fourteenth Amendment, threatened to back-fire. Would the federal effort only serve to make it unmistakably clear that Southern whites decisively rejected the new Republican Union? Even if white governments did not sabotage the process, could Southern Republicans win a steady stream of electoral victories and thereby create an institutional bandwagon in support of the Fourteenth Amendment?
Only one thing was clear: the Army’s sustained support would be crucial in pushing the process despite the resistance of the established governments. This leads us to a second great obstacle: Andrew Johnson, in his capacity as commander-in-chief. Johnson viewed the Republican Congress as an unconstitutional assembly bent upon centralized military despotism. How, then, would the President respond to Congress’s call to use the Army to destroy the all-white governments that he and Lincoln had helped create?
Worse yet, the Republicans had yet to hear from the Supreme Court. It was one thing for the President to denounce the Convention/Congress as unconstitutional; quite another for the Court to agree. Would the loyal people of the North continue to support the Republican Rump on Capitol Hill if the Justices declared the Reconstruction Acts unconstitutional?
Though Abraham Lincoln had made five appointments to the Court,2 they might not stand by the Convention/Congress at its moment of constitutional truth. A judicial counterattack would not only damage the Republicans’ standing before the nation. It would immediately disrupt the institutional balance of power. Armed with a Supreme Court opinion condemning the Reconstruction Acts, President Johnson would surely order his Southern commanders to shift their support to the all-white governments that had vetoed the Fourteenth Amendment. Might he go further and order the Union Army out of the South, proclaiming that his policies had restored peace?3 Once the Army left, would it ever return? Without the Army controlling terrorists and supervising state-building, would the Fourteenth Amendment ever be ratified?
These questions point to a deeper transformation at work. By nationalizing the triggering process in its Reconstruction Acts, the Convention/Congress was bringing forces into play that would nationalize ratification as well. The fate of the Fourteenth Amendment would no longer be resolved exclusively by goings-on in each of the states, as Article Five supposed. It would be determined in large part by the interacting decisions of Congress, President, and Court. To put my thesis in a single line: the separation of powers was taking on a key role in the ratifying process formerly monopolized by the states. I will be describing this great transformation step by step, as it emerged from the effort by the Convention/Congress to transcend first one, then another, challenge to its authority from the President and Court.
This will require us to revisit some of the most dramatic events of constitutional history—including the effort by the Convention/Congress to impeach the President and to strip the Supreme Court of its powers of judicial review. I will be locating these struggles within a larger pattern of transformation. Two themes will dominate, both with roots in a single feature of the Constitution. In contrast to the parliamentary system, the institutional protagonists in Washington D.C. could not call a special election at their convenience, but had to return to the voters on a fixed schedule. This meant, first, that if the President and Court wished to obstruct Reconstruction, there was only one way the Convention/Congress could respond before 1868—threaten the more conservative branches with dire institutional consequences unless they called off their campaign of resistance.
These unconventional threats took different forms in the case of the Presidency and the Court. In the first case, the Convention/Congress sought to impeach Andrew Johnson; in the second, it tried to deprive the Court of the power to rule on the constitutionality of the Reconstruction Acts. Despite their different form, these two actions performed identical functions. In each case, the Convention/Congress sought to preserve the mandate from the People that the Republicans thought they had won in the 1866 elections and to insist upon the rapid ratification of the Fourteenth Amendment.
The use of unconventional threats was hardly unprecedented as a higher lawmaking technique. We have already seen the Convention/Congress and the President make similar moves against Southern state governments in their efforts to win ratification of the Thirteenth and Fourteenth Amendments. The novelty, insofar as there is one,4 lies in the Convention/Congress’s selection of institutional targets. Previously, the states of the South were the targets of unconventional threats. But now that the ratification process had been nationalized, it was necessary to induce the conservative branches of the national government to cooperate if the Fourteenth Amendment was to become higher law. But how would the President and the Court react to such unconventional threats?
As we elaborate the pattern of conservative resistance and unconventional threat, a second basic implication of the constitutional calendar will appear to view. Call it the race against the clock. When the Convention/Congress passed its Second Reconstruction Act in March of 1867, only eighteen months remained before the elections of 1868. This simple point allows us to detect a cool constitutional logic in events that otherwise might seem—and have often been portrayed—as irrational melodrama. In continuing their struggle against the Republican Rump, neither the President nor the Court were fighting a pointless rear-guard battle. They were engaging in a rational strategic maneuver: if they succeeded in slowing down Reconstruction by only a few months, conservatives could transform the 1868 elections into a final referendum on the Fourteenth Amendment.
On this scenario, the conservative candidate for the Presidency (Johnson imagined himself in this role) could claim that Congress’s militaristic efforts had only created endless chaos in the South; each day’s news of white resistance to military Reconstruction would emphasize the wisdom of the President’s conservative policies. The conservative counteroffensive could well strike a responsive chord with Northerners who were increasingly weary of a generation of constitutional turbulence and profoundly ambiguous about black suffrage. It was unclear, of course, whether Johnson’s strategy would succeed. But it was not at all foolish for the President to think that, if he could only hold the fort until 1868, the People might come to his rescue.
It is a serious mistake, then, to view the conservative branches as powerless in the face of the Convention/Congress’s threats of impeachment and jurisdiction-stripping. Indeed, there are many cases in American history in which conservative branches have defied reformist pressure and have survived unharmed. But at this critical moment, neither President nor Court fought to the bitter end. Both executed brilliant “switches in time,” retreating before impeachment and jurisdiction-stripping in ways that saved them from permanent damage.
As a consequence, the Convention/Congress won its race against the clock. With the aid of the Union Army, enough states of the South signed on to the amendment to permit Secretary Seward to proclaim its validity in July of 1868. Rather than marking a further escalation of the higher lawmaking struggle, the election of 1868 served a different constitutional function: consolidation. Though the Fourteenth Amendment was now on the books, everybody was aware of its unconventional pedigree. Indeed, leading Democrats threatened to reverse Reconstruction during the fall elections. It was not too late for the voters to reopen the status of the Fourteenth Amendment by returning the Democrats to power in Washington.
But the election returns of 1868 put an end to all serious questioning. With their hold on national power reconfirmed in the consolidating election, Republicans in the White House and Capitol Hill took aggressive steps to pack the Supreme Court with men who would vindicate their new vision of the Union. By 1873, a reconstituted Court unanimously affirmed the validity of the Reconstruction amendments in the Slaughterhouse case. With all three branches now solidly behind the amendment, the Republicans’ great bootstrapping operation had come, at last, to a triumphant conclusion. To summarize the final stages of the institutional bandwagon:
Challenge by Conservative Branches → Unconventional Threats by
Reformist Branch (Impeachment and Jurisdiction-Stripping) →
Switch in Time by Conservative Branches → Consolidating Election →
Consolidating Opinions by the Supreme Court
Among other things, this schema will serve as a bridge to the next great constitutional turning point. A similar pattern will reemerge during the final phases of the New Deal Revolution—though on this occasion, the Presidency joined Congress as part of the reformist coalition and left the Supreme Court to play the leading conservative role in the “switch in time.” But all this is best left to Part Three. Our challenge is to understand the great transformation of the nineteenth century on its own terms.
As soon as the Convention/Congress left Washington after its first special session, other institutions began to fill the void. On April 15, the Supreme Court allowed the Johnsonian government of Georgia to proceed with a motion against Secretary of War Edwin M. Stanton. The petition urged an injunction against the Republicans’ effort to destroy the “existing State of Georgia and to cause to be evicted and substituted in its place … another distinct and hitherto unknown State, to be called and designated the State of Georgia.”5 Oral argument generated “intense interest”:6 Would the Justices take the lead in the struggle against Reconstruction and the Fourteenth Amendment?
The answer was Not Yet. As the Court ended its term in the middle of May, it dismissed Georgia v. Stanton for “want of jurisdiction.” This did not imply permanent passivity. Although the Court had refused to hear the plea of an abstract entity called the “State of Georgia,” it might hear the complaints of real people suffering real injuries at the hands of Union officers implementing Reconstruction. It would take a few months before such cases would begin arriving. As a consequence, the Court could leave Washington with its future role up in the air.7
The next move was up to the President, who was obliged to tell his commanding generals how to interpret the Reconstruction Acts. Like the Supreme Court, he sought to avoid a head-on confrontation, choosing a more subtle way of running out the constitutional clock. At his request, Attorney General Henry Stanbery provided formal opinions that interpreted the Reconstruction Acts in ways that would undermine their practical operation. Stanbery denied that Union generals could discharge uncooperative officials from the all-white governments. He also effectively eliminated their capacity to bar white Southerners of doubtful loyalty from the new black-and-white voting registries.8 Since the Reconstruction Acts were poorly drafted, these interpretations were not patently absurd—though it would have been easy to provide more expansive readings.9 In any event, only Secretary of War Stanton10 dissented when the President consulted his Cabinet on the Stanbery interpretations. With their support, Johnson embarked on a strategy of legalistic obstruction, issuing appropriate orders to his generals on June 20. If these orders were allowed to stand, the Congressional effort to trigger a new round of ratification activity was in deep trouble: with the old governments secure, ex-Confederates flooding the voting registries (and white vigilantes scaring blacks off), the deck would be stacked against the Republicans from the very start.
Given the President’s past performance, the Convention/Congress had arranged for an extraordinary summer session if need required. Returning to Washington in a fury, Republicans responded with a Third Reconstruction Act which rejected the Stanbery interpretations—and then dispersed until December.11
The first conservative campaign of resistance had wasted a few months but was little more than a sparring match. It was now up to the President and the Court to think again: Had the time come to call off further resistance?
From the very beginning, the Convention/Congress was painfully aware of the constitutional clock. The Second Reconstruction Act had explicitly instructed the commanding generals to complete registration of the new black and white voters by September 1.12 In overruling the Stanbery interpretations in its Third Act, the Republican majority recognized that Presidential obstruction had made this date unrealistic, but only extended the deadline to October 1.13 Unfortunately for the Republicans, it would be harder to set precise time limits on the further phases of Reconstruction. After the voting rolls were established, the Army commanders had to allow a decent interval—the statute said “not less than thirty days”14—for candidates to present themselves to the new electorate. If the voters then approved a constitutional convention, the commanding general had sixty days to “notify the delegates to assemble.”15 The next stage was even less amenable to statutory control; the delegates, if they so chose, could dally forever before proposing a new constitution to the People. Only then did the statute take up the drumbeat, telling the commanding general to submit the constitution to the electorate “after the expiration of thirty days from the date” it was proposed.16 If everything went right, new multiracial legislatures might be in a position to ratify the Fourteenth Amendment by the late spring or early summer of 1868—just in time for the Republicans to return to the People in the fall.
This would not only allow the Republicans to claim their policy was a success. It would enable them to redefine the very meaning of electoral victory, especially so far as the Presidential election was concerned. If the Southern states remained disorganized, they would not be in a position to cast electoral votes; if, however, they were in the control of a black-and-white coalition of Republicans, the party could look with greater confidence on its prospects for nationwide victory. In short, the Republicans were trying to set up yet another unconventional bandwagon—if their effort to create a new electorate in the South succeeded, then this new electorate could help the Republicans redeem their claim to speak for We the People of the United States in 1868.
By the same token, if Johnson hoped to win election in his own right, he would do everything within his power to stop this bandwagon in its tracks. Only one thing was clear: the Republican timetable depended upon the energy and enthusiasm of the five district commanders in the South. It would be child’s play for them to shift the state-building machine into low gear, asserting that chaotic conditions required more deliberate speed. As Congress left for the summer, it could be cautiously optimistic, since four of the five district commanders were strong Republicans.17 At the same time, if Johnson wished to continue legalistic resistance, his next step was obvious: purge the Army chain of command.
This would not be easy, since the Convention/Congress had taken precautionary measures in two statutes, passed over the President’s veto, on March 2, 1867.18 The Command of the Army Act barred Johnson from removing Ulysses Grant as General of the Army without the express consent of the Senate. It also required the President to issue all military orders through General Grant, and threatened any military officer with a minimum prison term of two years if he obeyed a Presidential order without Grant’s signature.19
Johnson could, of course, defy this unprecedented assault on Presidential power—if he was willing to risk impeachment. But if he chose to follow the law, he would have to convince Grant to join him in the military purge. This was made more difficult by a second statute. The new Tenure of Offices Act protected civilian officials from Presidential removal without Senatorial consent. It would come into play if the Presidential purge included Secretary of War Stanton. Originally appointed by Lincoln, the Secretary was the sole remaining member of Johnson’s Cabinet who sympathized with the Congressional cause.20 Stanton was a more adept political infighter than Grant. So long as he remained in the War Office, it was highly unlikely that Grant would go along with Presidential orders purging Republican district commanders; and if Grant did not go along, Johnson would find it hard to persuade military men to risk a two-year jail term. Hence the Secretary was marked out as Purge Victim Number One.
The Tenure of Offices Act did not give Stanton the explicit protection afforded Grant by the Command of the Army Act. Its first section began by guaranteeing tenure to “every” civil officer whose appointment had been confirmed by the Senate “until a successor shall have been in like manner appointed.” But unfortunately for Stanton, the statute immediately continued:
Provided, That the Secretaries of State, of the Treasury, of War, of the Navy, and of the Interior, the Postmaster General and the Attorney General, shall hold their offices respectively for and during the term of the President by whom they may have been appointed and for one month thereafter, subject to removal by and with the advice and consent of the Senate.21
This proviso would give Stanton’s partisans no end of trouble, since the Secretary had never been formally reappointed by Johnson. Under the terms of the proviso, it would seem that Stanton had been guaranteed tenure only during the term of President Lincoln “and for one month thereafter.” As Johnson considered his options in August 1867, the Tenure of Offices Act did not seem to present a serious legal obstacle.
But never underestimate the ingenuity of lawyers. As events proved, Stanton’s lawyers would be able to say something on his behalf. Their trick was to adopt a highly conceptual understanding of Lincoln’s “term” in office. On this view, Lincoln’s second term did not end with John Wilkes Booth’s bullet in April of 1865; it continued until the moment on March 4, 1869, that Lincoln would have retained the legal right to remain in office. As a consequence, Republican lawyers would claim that Andrew Johnson was merely filling out Lincoln’s “term.” On this reasoning, any Cabinet officer appointed by Lincoln during his second term was protected from Johnson’s displeasure. Even this strained interpretation did not help Stanton much, since he had been appointed by Lincoln during his first term in office and had not received a formal reappointment. It was therefore necessary for the lawyers to twist again and assert that the statute compelled second-term Presidents to stick with the choices they made during their previous term unless they could convince the Senate to accept a replacement. Although the legislative history explicitly rejected this view (which was intrinsically implausible in any event), this did not stop some Republican partisans.22
These convoluted legalisms should not obscure the main institutional point. However farfetched Stanton’s statutory interpretations, the Supreme Court would not return to Washington until December; nor would Congress get a chance to amend the statute until it returned in late November. In the interim, it would be up to the President and his Secretary to resolve the matter on their own. On August 5, 1867, only days after Congress had left town, Johnson wrote to Stanton:
Sir: Public considerations of a high character constrain me to say, that your resignation as Secretary of War will be accepted.23
To which Stanton replied:
… I have the honor to say that public considerations of a high character, which alone have induced me to continue at the head of this Department, constrain me not to resign the office of Secretary of War before the next meeting of Congress.24
Not for the first time, a key actor was defending a threatened constitutional position by taking the distinctive posture of an adverse possessor. Though his legal case was gossamer, Stanton was asserting his authority to hold office in the name of the Convention/Congress.
The President’s next move reveals the cool deliberation with which he played his cards. From a strictly legal point of view, he held a winning hand.25 But Johnson was not interested in self-indulgent invocations of Presidential authority if it got in the way of his immediate objective: to purge the Army command and thereby slow down Reconstruction and the Fourteenth Amendment. Instead of challenging Stanton’s interpretation of the Act, he invoked a statutory escape hatch. Section Two allowed the President, during a Senate recess, to suspend a tenured official if he had been “shown, by evidence satisfactory to the President, to be guilty of misconduct in office, or crime, or for any reason shall become incapable or legally disqualified.” Under this procedure, the President had to justify his decision to the Senate within twenty days of its next meeting; if the Senate refused to concur, the statute provided that the suspended officer “shall forthwith resume the functions of his office.”26 By proceeding under this provision, Johnson was creating a future problem for himself. But for the moment, his legal tactics gave him a priceless strategic advantage. By triggering Section Two, the President deprived Stanton of the last shred of legal argument justifying disobedience.
No less important, by ostentatiously proceeding within the letter of the law, he obtained the cooperation of Ulysses S. Grant, even convincing the General to serve as Stanton’s replacement as Secretary of War ad interim. Tactically, this was a masterstroke. When Grant presented Stanton with the suspension order on August 12, the Secretary had no real choice but to give way to the nation’s most popular war hero. So long as Grant remained in Johnson’s Cabinet, he could not honorably invoke the Command of the Army Act and refuse to countersign the President’s commands. With a single stroke, the President had cut through the Republicans’ efforts to tie his hands as commander-in-chief.
Five days later, Johnson began his purge. His initial target was General Philip Sheridan, the most aggressively Republican district commander. By the end of the month, the President also removed Republican General Daniel Sickles from the sensitive Second District (containing North and South Carolina). Despite verbal protests, Grant neither resigned his ad interim appointment nor refused to execute the President’s orders. To cap off his summer offensive, Johnson issued a proclamation of amnesty for all but a handful of Confederates, once again reminding the country of the Resolution of 1861, which put Congress on record in declaring that “this war is not waged upon our part for the … purpose of overthrowing or interfering with the rights or established institutions of those States [in rebellion] …, but to defend and maintain the supremacy of the Constitution and to preserve the Union, with all the dignity, equality, and rights of the several States unimpaired.”27
So matters stood as the nation paused for the elections of 1867. These contests could not directly affect matters in Washington, but the voters were poised for some symbolically significant decisions. The eyes of the country turned to Ohio. Elections would determine whether Senator Ben Wade, the radical who would succeed Johnson in case of a successful impeachment, would win another term. Ohioans were also voting on a constitutional amendment granting suffrage to blacks. The campaign, marked by virulent racist appeals, led to the defeat of black suffrage and Ben Wade.28 Black suffrage was also rejected by the voters in Kansas and Minnesota. Republicans suffered clear-cut defeats in the legislatures of Pennsylvania, New York, New Jersey, and Maryland, and their majorities were significantly reduced throughout the North.29
So far as Johnson was concerned, these returns had only one meaning: “I am gratified, but not surprised at the result of the recent elections,” he explained to serenaders at the White House, “I have always had undoubting confidence in the people. They may be misled … but never perverted, in the end they are always right. In the gloomiest hours through which I have passed—and many of them God knows have been dark enough—when our Constitution was in the utmost peril … I had still an abiding confidence in the people and felt assured that they in their might would come to the rescue. They have come and, thank God! they have come.”30 If he only stayed his course, and continued to sustain the white Southern governments, would not next year’s federal elections provide final vindication?31
In the meantime, his August takeover of the War Department was showing results. Johnson’s replacement for Sheridan was the deeply conservative Winfield S. Hancock—who immediately began to reinstate Johnsonian officials discharged by his predecessor,32 declaring in his first order: “The General commanding is gratified to learn that peace and quiet reign in this department. It will be his purpose to maintain this condition of things. As a means to this great end, he regards the maintenance of the civil authorities [i.e., Johnson’s white governments] as the most efficient, under existing circumstances.”33
Encouraged on both the administrative and electoral fronts, Johnson proceeded with his purge. On December 28, he obtained Grant’s consent to the removal of John Pope and Edward Ord, the last two Republican district commanders. As the New Year approached, he had every reason to celebrate the coming of 1868, and the national elections it would bring.
The Congressional leadership appreciated the gravity of their situation.34 Unless they took decisive action, the upcoming elections would be held with white governments in the South, and the Fourteenth Amendment in constitutional limbo.35 How to avoid this fate?
The Republicans could pass more statutes, but the President had shown an uncanny ability to evade command. If words would not bind, there was only one alternative: impeachment. The man next in line for the White House was the radical Senator, Ben Wade, who required no convincing about the imperative need for speedy Reconstruction.
But it would not be easy to impeach the President. The great stumbling block was the legalistic character of his resistance. Johnson had taken great pains to avoid any outright breach of the rules laid down by Congress.36 How, then, could he be found guilty of “high crimes and misdemeanors”?
Radicals like Thaddeus Stevens were willing to dismiss legalistic quibbles, but the Republican majority had not lost its sense of restraint. On December 7, the House rejected impeachment by 57 to 108, with 68 Republicans voting with the Democratic minority.37 Even as late as February 14, the majority rejected Stevens’s effort to return impeachment to the floor of the House.38
And yet, the President still had a long way to go before he could achieve his objectives. His purge of the high command had not prevented the army from completing the first stages of the Reconstruction process. Except for Texas, the military registrars had generally met their October 1 deadline. During the final months of 1867, the military had supervised the first set of elections required by the Second Reconstruction Act, at which the voters were asked to authorize, and select delegates to, a new constitutional convention. The results of this first round went overwhelmingly to the Republicans. In all nine states holding elections, conservatives failed to convince the black-and-white Southern electorate to reject the call for a constitutional convention.
The early months of 1868 would be crucial. Throughout the South, conventions would be meeting to propose constitutions; if voters approved, the days of the old governments would be short. If the President hoped to stop the transition, his commanders would have to use their discretionary authority to encourage local conservatives to delay and disrupt the conventions, and to organize actively to defeat the new constitutions at the next round of elections. But before the President could act decisively in the South, he must somehow solve a legal problem he had created for himself in Washington.
To clear the way for his purge of the high command, Johnson had taken the path of least resistance against Secretary Stanton. Rather than firing Stanton outright, he had suspended him under the Tenure of Offices Act. When Congress convened in late November, the President bought more time by submitting the notice of Stanton’s suspension within the twenty-day period specified by the statute.39 As the new year opened, Johnson could no longer evade, by artful legalism, the statutory challenge to his authority. On January 13, the Senate refused to concur in Stanton’s removal. By the terms of the act, the time had come for Stanton “forthwith [to] resume the functions of his office.”
Johnson responded with great tactical skill. On Saturday, January 11, he had a private talk with his Secretary ad interim, Ulysses S. Grant, about the future of the War Office. He now explained that he had always considered the Tenure of Offices Act unconstitutional and proposed to test his power to remove Stanton in the courts. Offering to pay any fine levied on Grant for violating the act, the President implored him to remain in office. Grant refused, finally aware of the damage he was doing to his own Presidential prospects. What happened next was the subject of bitter dispute. The President asserted, and the General denied, that Grant promised to return control of the War Office to Johnson rather than allow Stanton to regain possession. This would permit the President to appoint a new interim Secretary willing to reject Stanton’s claims under the Tenure of Offices Act. Under this scenario, the President would keep the upper hand in his battle with the Convention/Congress. All through the next round of interbranch struggle, it would be the President’s man who would be wielding power from the War Office, while Stanton stood helpless in the wings. If Stanton went to the courts, he might only succeed in gaining judicial confirmation of his defeat—after all, his legal case was very weak.
As the President awaited the Senate vote ordering Stanton’s reinstatement, Johnson had reason to look to the future with grim confidence. All the more bitter was his disappointment. For the first (and only) time in constitutional history, it would not be the President or the Congress or the Court who made the decisive constitutional move. It would be a military man: Grant returned the War Office to Secretary Stanton and denied that he had made any contrary promise to the President.
The balance of unconventional authority had begun to swing against the President. No longer could he expect unquestioned obedience as commander-in-chief, since Stanton would predictably challenge Presidential commands and encourage Grant to withhold the signature required by the Command of the Army Act. Whatever the weaknesses in Stanton’s legal claims, his simple ability to sustain possession of the War Office undermined Johnson’s capacity to get his orders followed by his field commanders. If Johnson wished to continue his campaign, he would have to find a way to remove Stanton physically from the War Office and replace him with a Secretary ad interim committed to Presidential authority.
As the President pondered his next move, news from the South emphasized the high stakes. On February 4, Alabama became the first Southern state to vote on the work-product of a constitutional convention. To the Republicans’ despair, a majority of registered Alabamans failed to show up at the polls and so the new constitution failed to satisfy the test for validity established by the Second Reconstruction Act.40
Other Southern states were lagging behind Alabama. Conventions had begun meeting during January and February 1868. Early news was not encouraging. When moderates in Florida walked out of a convention dominated by radicals, Johnson’s new commander, General George Meade, allowed them to form their own separate convention. When the radicals adjourned, Meade forced enough of them to join the moderates so as to give their convention a quorum.41 The fate of Reconstruction, and the Fourteenth Amendment, was hanging in the balance.
Johnson’s next decisions deepened the sense of crisis. On February 12, he created a new Military Division of the Atlantic, with headquarters in Washington, D.C. This gave the President a military force independent of General Grant. At the same time, he proposed to promote William Sherman to the full generalship only Grant possessed, and to bring this popular but conservative war hero to Washington as commander of the new military district. Since Sherman was well disposed to Johnson, the President hoped to use him as his tool to oust Stanton from the War Office and play Grant’s old role as interim Secretary. When Sherman resolutely refused to mix himself up in constitutional politics,42 Johnson turned to the bumbling Adjutant General, Lorenzo Thomas. On February 21, Thomas crossed Pennsylvania Avenue to the War Office to announce: “By virtue of the power and authority vested in me as President by the Constitution and laws of the United States you are hereby removed from the office as Secretary for the Department of War, and your functions as such will terminate upon the receipt of this communication.”43 As the President explained this step, it was a continuation of his strategy of legalistic resistance: its aim was to precipitate a legal test before the courts.44
The next move was up to the Convention/Congress. It could accept the President’s invitation to view their dispute as just another issue of normal politics, appropriately resolved by the Supreme Court. Or it could assert its unconventional authority as a tribune of the People and use its power of impeachment to protect Reconstruction against the President’s assault.
It took the latter course, which was played out in dramatic scenes that seared themselves into the consciousness of nineteenth century Americans. Stanton refused to obey Thomas’s order and barricaded himself into his office with a phalanx of Republican Senators. In the meantime, the House preempted the President’s effort to present the dispute to the Supreme Court. After a brief debate, it impeached Johnson by a vote of 126 to 47, with Democrats alone in the minority. The Speaker then appointed a special committee to address the legalities.45 It responded with an elaborate bill of impeachment containing nine articles charging specific violations of the Tenure of Offices Act or the Command of the Army Act—only to find their efforts challenged by the Representatives selected to manage the impeachment before the Senate. Distressed by the legalistic tenor of the bill, these Managers convinced the House to add two more articles that altered the nature of the proceeding. The first of these—article ten—omitted any mention of illegality, impeaching Johnson for “set[ting] aside the rightful authority of Congress,” by asserting that “in fact it is a Congress of only part of the States.” The House then added an eleventh article that impeached the President both for illegal acts involved in removing Stanton and for publicly denying the legitimacy of a “Congress” that excluded Southerners.46 This last article—uniquely combining legal and unconventional charges—became the focus of the Senate’s decisive vote on Presidential removal.
These additional articles required the Senate to answer some very basic questions: To what extent should it operate as a court, impartially determining whether the President had engaged in willful violations of statutory law? To what extent was it a tribune of the People seeking to vindicate its authority against a President who denied Congress’s right to exclude the South?
The Senate trial was scheduled to begin on March 30. In the meantime, another institutional dynamic helped shape the outcome.
As the Convention/Congress squared off against the President, the Supreme Court emerged from the shadows. In the spring, it had refused to intervene at the behest of the Johnsonian government of Georgia. When it returned to Washington in December, it confronted a new lawsuit, masterminded by the President’s confidant, the formidable Jeremiah S. Black.47 This petition sought to vindicate the concrete rights of a real person, William McCardle, whose editorial attacks on Reconstruction in Mississippi had led to his military arrest under the Reconstruction Act.48 In bringing McCardle’s predicament to the Court, Black and his co-counsel launched a sweeping attack on Congress’s authority to displace the Johnsonian governments49—often repeating the same arguments Black had developed when working with the President on veto messages.50 While McCardle’s concrete predicament gained the Court’s attention, the suit was part of the larger Presidential strategy.
Responding to this emerging threat, Republican Senator Lyman Trumbull sought to persuade the Court that it lacked jurisdiction over McCardle’s case. As chairman of the Senate’s Judiciary Committee, Trumbull was entitled to serious consideration—after all, his committee had passed the relevant jurisdictional statute only a year before. Nonetheless, the Court unanimously rejected his arguments on February 17.
No less important, it gave the case expedited treatment. The normal waiting period was then two years,51 but the Court reserved the entire week of March 2 for this single case—awarding each side six full hours for oral argument. (This was three times the norm.) During this same week, the House was formally submitting its bill of impeachment to the Senate. The interbranch struggle was reaching its climax.
Consider the delicate balance. The President had a strong legal case if he made a second effort to remove Stanton. As we have seen, the Tenure of Offices Act offered scant protection to a cabinet officer in Stanton’s position; moreover, the act itself was of doubtful constitutionality.52 But viewing the matter unconventionally, Congress held the upper hand. Whatever the strict legalities, Stanton was in possession of the War Office, flouting Presidential authority behind the barricades in the name of the Convention/Congress. Johnson could not change this without attempting a micro-military invasion. With the Senate poised for an impeachment trial, Johnson would be playing with fire if military thugs broke through the barricades to evict Stanton.53
But judicial intervention might shift the balance once again. Armed with a Court opinion, Johnson could renew his demand for Stanton’s removal. He could also order his conservative district commanders to cease enforcing acts that the Court had declared null and void. And he could present himself to the Senate as a heroic defender of legality, not the perpetrator of “high crimes and misdemeanors.” If a Senate of Northerners voted to convict, would he comply with such a blatantly unconstitutional decision?*
Only the most drastic measures would suffice to head off such a devastating counterattack. On March 12, the Republicans passed a statute removing the McCardle case from the Court’s jurisdiction even though the Justices had already heard argument. Such an action would normally serve as a devastating confession by Congress of the unconstitutionality of Reconstruction. But, as these chapters have shown, the unconventional character of Congress’s authority was hardly a secret to the American people by March of 1868. The Republican assault on the Court dramatized the obvious: “Congress” was not relying on the Founding document for its legitimacy, but on its contemporaneous mandate from We the People of the United States to insist upon Reconstruction and the Fourteenth Amendment.
But would the Court retreat before this unconventional assertion of authority? The Constitution gave the President ten business days to consider a veto; and it would take Congress a day or two to override it. This gave the Court two weeks to beat Congress to the punch by announcing its final decision.54 According to Chief Justice Chase, if “the merits of the McCardle Case [had] been decided the Court would doubtless have held that his imprisonment for trial before a military commission was illegal.”55 How many Justices were prepared to go beyond the question of military trials, and declare the entire Reconstruction effort unconstitutional, is less certain. At least four of the eight sitting Justices seemed willing; whether a fifth vote could be found is less clear.56 Even if only four justices had signed a broad opinion, while others voted to discharge McCardle on the “narrow ground,” the result would have been devastating.
The decisive problem for the Justices was not the merits but the question of institutional self-preservation: Was continued resistance worth the risk that the Republicans would retaliate by inflicting even more serious damage upon the Court’s institutional independence?
By a vote of 6 to 2, the Justices retreated. Given the procedural posture of the case, the majority negotiated its “switch in time” by doing nothing and allowing the jurisdiction-stripping statute to come into effect. But Justices Robert Grier and Stephen Field made the stakes clear enough in their dissent, which the court reporter somehow failed to publish in his official Reports.57
Protest of Mr. Justice Grier:
This case was fully argued in the beginning of this month. It is a case that involves the liberty and rights not only of the appellant, but of millions of our fellow-citizens. The country and the parties had a right to expect that it would receive the immediate and solemn attention of this court. By the postponement of the case we shall subject ourselves, whether justly or unjustly, to the imputation that we have evaded the performance of a duty imposed on us by the Constitution, and waited for legislation to interpose to supersede our action and relieve us from our responsibility. I am not willing to be a partaker of the eulogy or opprobrium that may follow; and can only say:
Pudet haec opprobrium nobis
Et dici potuisse;
et non potuisse
repelli
[Trans.: I am ashamed that such opprobrium should be cast upon the court, and that it cannot be refuted. Ovid, Metamorphosis, Book 1, lines 758–759]
R. C. Grier
I am of the same opinion with my brother Grier, and unite in his protest.
Field, J.
But most Justices were more impressed by Congress’s unconventional threats than their colleagues’ charge of cowardice. As soon as the jurisdiction-stripping statute became law over the President’s veto on March 27, McCardle’s lawyers urged the Justices to give expedited treatment to their constitutional challenge to this unprecedented statute. But the Court refused,58 deferring the matter to its December term.59 By that point, the election returns would cast a different light over the dispute.
The Court’s retreat left the President in an exposed position. Only three months earlier, he was on the verge of triumph, with Grant in the War Office and the field command purged of Republican activists. But after the Convention/Congress’s counteroffensive, the President confronted a hostile Stanton in the War Office, an alienated Grant as Commanding General, and a Senate poised to consider the question of “high crimes and misdemeanors” without the instruction of the Supreme Court on the status of Reconstruction.
As the impeachment trial began on March 30, Johnson was left with some unattractive options. He could still try to disrupt Reconstruction by asserting his power, as commander-in-chief, to issue orders over the heads of Stanton and Grant. But would his commanders obey?
Continued Presidential provocations would have a disastrous impact on the Senate. Granted, the President still had a very strong legal case against the Tenure of Offices Act. But as Representative Ben Butler, one of the Managers of the impeachment, put the point in his opening argument on March 30: “[Y]ou are bound by no law, either statute or common, which may limit your constitutional prerogative. You consult no precedents save those of the law and custom of parliamentary bodies. You are a law unto yourselves, bound only by the natural principles of equity and justice, and that salus populi suprema est lex.”60 On his view, it was enough to remove the President for “high crimes and misdemeanors” if Senators concluded that Johnson’s Southern strategy was “subversive of some fundamental or essential principle of government or highly prejudicial to the public interest.”61 The President’s counsel took the opposite view—the Senate was a court, and it could remove the President only if he had committed a criminal act.62
As the Senate teetered uncertainly between rival characterizations,63 the constitutional clock kept on ticking. Even if Johnson behaved himself, it was anybody’s guess whether the Republicans would return to the voters in the fall with the Fourteenth Amendment on the books and black-and-white governments established on the ground. But if the commander-in-chief made yet another effort to disrupt Reconstruction, the resulting chaos in the War Office and the Southern command could easily doom the Republican race against the clock.64
This meant that the President would largely determine whether the Senate would view the impeachment process as a political inquest or a legalistic trial. If he initiated another round of open resistance, Republicans in the Senate would undoubtedly rally around Butler’s vision and replace Johnson with the radical Benjamin Wade. If Johnson allowed Reconstruction to proceed to the triumphant ratification of the Fourteenth Amendment, he stood half a chance of sustaining the legalistic characterization of impeachment—and serve out his term in the White House. Which would it be: fight or switch?
The President retreated. Not only did he cease all serious acts of resistance,65 he made more affirmative gestures as the Senate’s climactic vote of May 16 came closer. On April 24, Johnson agreed to nominate John Schofield as Secretary of War, who accepted the appointment only on the understanding that the President would make no further efforts to interfere with Reconstruction.66 By early May, he confronted a new test on receiving the first new constitutions approved by the voters of two states, Arkansas and South Carolina, which had complied with Congress’s commands. Against the advice of Cabinet diehards, Johnson showed his good will by forwarding the new constitutions to the Congress on May 5. In private meetings, Johnson assured moderates that he would do nothing to violate the law or the Constitution if acquitted.67 The overall impact of the President’s switch in time is best described by Michael Benedict:
Perhaps even more important than the President’s assurances to conservative Republicans was the actual cessation of his interference while impeachment progressed. In explaining “What Has Happened During the Impeachment Trial,” the Chicago Tribune wrote simply, “Andrew Johnson has been a changed man. The country has been at peace. The great obstruction to the law has been virtually suspended; the President … has been on his good behavior.” The President’s new docility enabled Republicans to recoup some of their losses in the South. In six of the unreconstructed States [the number needed for ratification of the Fourteenth Amendment], Republicans were able to win ratification of the Reconstruction laws, although by narrow margins…. By the time senators voted on impeachment, it was clear that only Virginia, Mississippi, and Texas would remain unrestored and liable to presidential interference. It is remarkable how quickly the sense of crisis that gripped the capital a few months earlier eased.
To a large extent, therefore, impeachment had succeeded in its primary goal: to safeguard Reconstruction from Presidential obstruction.68
The President’s switch also had its predictable effect on the Senate’s evolving understanding of the impeachment process. It weakened the intense pressure on Republican moderates to abandon their legalistic interpretation of impeachment as a quasi-criminal trial. The importance of this point is suggested by the fascinating series of opinions filed by individual Senators after the President’s acquittal. The very idea of filing quasi-judicial opinions was eloquently denounced by radicals like Charles Sumner.69 But for Republican moderates,70 the opinions provided them with a crucial opportunity to deflect partisan criticism. In the words of Lyman Trumbull:
The question to be decided is not whether Andrew Johnson is a proper person to fill the presidential office, nor whether it is fit that he should remain in it, nor, indeed, whether he has violated the Constitution and laws in other respects than those alleged against him [in the bill of impeachment]…
Unfit for President as the people may regard Andrew Johnson, and much as they may desire his removal, in a legal and constitutional way, all save the unprincipled and depraved would brand with infamy and contempt the name of any Senator who should violate his sworn convictions of duty to accomplish such a result.71
Senator Trumbull had not always responded to the crisis with such emphatic legalisms. As recently as March, he had taken a leading role in stripping the Supreme Court of jurisdiction over McCardle’s case. But the Court was then threatening the very existence of the Republicans’ constitutional project; now that the President had retreated, Trumbull was more than willing to legalize an unconventional situation. Since Johnson was acquitted by a single vote in the Senate, it is plain that Johnson’s switch in time saved the Presidency from a very damaging precedent.
Not that the Presidency immediately rose out of the flames of impeachment in Phoenix-like splendor. The emerging Republican regime of normal politics would, in Woodrow Wilson’s phrase, be one of Congressional government. Not until the 1930’s would the Presidency rival Congress in the American scheme. Yet, even at their low points, Presidents never had to struggle with the specter of a convicted Andrew Johnson obliged (by a show of force?) to leave the White House for the “crime” of opposing Congress.
With the Court and the President in retreat, the Union Army proceeded to supervise a wave of elections in the South.72 During the spring, the Republicans emerged victorious at the polls in six Southern states, losing only in Mississippi.73
Alabama posed a more complicated problem.74 Its reconstituted citizenry was the first to cast ballots on an interracial constitution—voting 72,000 to 1,000 in favor. But this margin did not satisfy the demands of the Second Reconstruction Act, which required the participation of at least half of all registered voters. Alabama had fallen short of this threshold by 10,000 votes.75 This news had generated such anxiety in March that the Republicans passed a Fourth Reconstruction Act that repealed this requirement.76 Under the new ground rules, it would no longer matter that most Southerners were boycotting the polls—so long as the Republicans got a majority of the voters who braved the boycott, the Fourth Act professed itself satisfied with the new constitution’s legitimacy. While the Republicans managed to get their bill enacted in time to govern all subsequent elections, the Fourth Act did not try to change the rules retroactively. Instead, the draftsmen supposed that the boycott of white Alabamans had successfully defeated Reconstruction.
By June, this supposition assumed strategic importance. Despite the six recent victories in the South, events in the North threatened to unravel the ratification effort. The Republican defeats in the elections of 1867 were coming home to roost as Northern legislatures convened in 1868. Already New Jersey and Ohio had withdrawn their earlier ratifications of the Fourteenth Amendment. Recent elections in Oregon threatened another legislative defection. In response, the Congressional leadership moved aggressively to recognize the constitutional legitimacy of all seven Southern governments, including Alabama, and thereby put the Fourteenth Amendment over the top.
One of these states—Arkansas—had already ratified the amendment, and her representatives were immediately admitted to Congress on June 22.77 As to the others, Congress took a more unconventional course. Its act of June 25 proclaimed that all six (including Alabama) had “framed constitutions of state government which are republican” and “shall be entitled and admitted to representation in Congress … when the legislature of such state shall have duly ratified the amendment to the Constitution … known as article 14.”78 Speaking for the Joint Committee on Reconstruction, Congressman Bingham explained why he opposed all efforts to amend the statute to eliminate Alabama or other states whose constitutions seemed defective to some of his colleagues.79 Citing the recent Republican defeat in Oregon, Bingham called for action “above all—and it is to this I call the attention of the House and of this country—because upon the admission of these six states, upon the express condition named in the bill, may depend the final ratification and incorporation into the Constitution of the Republic of the fourteenth article of amendment.”80
This candid confession emphasizes the blatant refusal by the Convention/Congress to respect the structure of the Federalist’s Article Five. Since the act of June 25 explicitly proclaimed the six Southern states to be fully republican governments, there was no longer any textual foundation for barring their representatives from the House and Senate. And yet this is precisely what the Convention/Congress was doing by conditioning admission on the further act of ratifying the Fourteenth Amendment. As President Johnson put the point in his veto:
… [T]his bill supersedes the plain and simple mode prescribed by the Constitution for the admission to seats in the respective Houses of Senators and Representatives from the several states. It assumes authority over six States of the Union which has never been delegated to Congress, or is even warranted by previous unconstitutional legislation upon the subject of restoration…. In the case of Alabama it violates the plighted faith of Congress by forcing upon that State a constitution which was rejected by the people, according to the express terms of an act of Congress requiring that a majority of the registered electors should vote upon the question of ratification.81
Let us grant, with Bingham, that the fate of the Fourteenth Amendment hung in the balance. But so long as the operative norms governing constitutional amendment were rooted in the Federalist text, this hardly justifies the Congressional override of the President’s veto.
From the textualist perspective, the whole point of a written constitution is to provide an anchor in times of crisis. If Article Five means anything, it gives each state the right to vote no as well as yes to any proposal coming out of Washington D.C. If the Congress, in its desperate effort to impose the Fourteenth Amendment, blatantly contravened this fundamental principle, so much the worse for the Fourteenth Amendment!
This exclamation returns us to my central thesis: the anxiety provoked by the Congressional override is based on a fundamental mistake in legal method. Modern lawyers are wrong to suppose that the validity of the Fourteenth Amendment is to be determined by a principled application of the text laid down by the Federalists. They should follow instead the methods of the common law and look upon both Founding and Reconstruction as co-equal precedents in an ongoing tradition of higher lawmaking.
From this point of view, there are striking analogies between the decision by the Convention/Congress to override President Johnson and decisions made during the Founding. In particular, President Johnson’s veto message resembles the public protest of Governor Collins of Rhode Island when the Philadelphia Convention ran roughshod over a principled reading of the Articles of Confederation. Bingham’s candid warnings are analogous to those issued by James Wilson and James Madison against a misplaced textualism that threatened to destroy the Federalist venture in constitutional politics.82 Rather than papering over such assertions of unconventional authority, I have tried to locate them within an unfolding dynamic of institutional adaptation that allowed both Federalists and Republicans—each in their own time and place—to earn credibility for their claim to speak for We the People of an increasingly United States.
Having come this far, we can now turn to yet another episode that challenges hypertextualist understandings.
A month later, the six Southern states had complied with the Congressional demand for ratification, and it was up to the Secretary of State to make legal sense of the consequences. In his proclamation of July 20, Seward reacted with consternation to the notices he had received from “newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the states of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama.”83 After publicly demeaning these new Congressional creations, his proclamation followed up with a remarkable disparagement of the amendment’s validity. Seward did not take the provocative step of explicitly proclaiming that the six Southern assents were null and void. He pointed to a defect that Republicans found more embarrassing: the decisions by the newly elected legislatures of New Jersey and Ohio to revoke their previous ratifications. Wringing his hands with mock anxiety, the Secretary awarded the amendment only a conditional validity “if the resolutions of Ohio and New Jersey … remain[] of full force and effect.”84 All in all, an artful performance: the Southern ratifications were publicly impugned, but it was the Northern ones that Seward identified as impairing the amendment’s claim to higher law status.
But the Convention/Congress was not in the mood for forensic subtleties. On the day after Seward’s proclamation, both Houses enacted a concurrent resolution “declaring the ratification of the fourteenth amendment” on the basis of the assent of all the states—both North and South—that had ever ratified it. Like so much else in this history, the effort by the Convention/Congress to resolve the question of validity was entirely unprecedented. Previously, such decisions had always been left to the Secretary of State to resolve by issuing an appropriate proclamation.
This meant that the institutional dynamic would return to the executive: Would Secretary Seward respond to Congress’s aggressive resolution with a counterattack denouncing the validity of the Fourteenth Amendment? Or would he execute a strategic retreat?
The answer, once again, was a switch in time. Seward’s proclamation of July 28 no longer asserted his independent authority to examine the merits of the ratification process. After reciting the Congressional resolution in full, he treated it as precluding any further doubt: “in execution … of the aforesaid concurrent resolution of the 21st of July, 1868, and in conformance thereto, … I do hereby declare that the said proposed amendment has been adopted.”85
Though this tale of two proclamations can only embarrass the hypertextualist, we can now see it in a different light. It is not an awkward anomaly, but a surface reflection, in the official documents, of the structural transformation that had occurred. Time after time, Reconstruction Republicans had been obliged to challenge the monopoly over the ratification process that the Federalists had granted to the states. Time after time, they had won their struggle by adapting the federal separation of powers to new higher lawmaking purposes. Is it not appropriate, then, that the last act of ratification involved decisions made at the federal, and not the state, level?
But as the Secretary gave ground, it was by no means clear whether his retreat was permanent or merely strategic. July was also the month when the Democratic National Convention was charting its electoral course. Its platform set the tone, offering Andrew Johnson “our thanks for his patriotic efforts” in “resisting the aggressions of Congress upon the Constitutional rights of the States and the people.”86 Even more threatening were the pronouncements of the Democrats’ Vice-Presidential candidate, Frank Blair. In a public letter, Blair confessed that his party would be unable to dislodge the Republican majority in the Senate even if it won the Presidency and the House of Representatives. Since Democrats could not hope to repeal the Reconstruction Acts by normal methods, Blair proposed an unconventional solution:
There is but one way to restore the Government and the Constitution, and that is for the President-elect to declare these acts null and void, compel the army to undo its usurpations at the South, disperse the carpetbag State governments, allow the white people to reorganize their own governments and elect Senators and Representatives. The House of Representatives will contain a majority of Democrats from the North, and they will admit the Representatives elected by the white people of the South, and with the cooperation of the President, it will not be difficult to compel the Senate to submit once more to the obligations of the Constitution.87
Blair, in short, was offering a rerun of the election of 1866—where a conservative victory in the House would have enabled Johnson to force the Republican Rump on Capitol Hill to end its campaign for the Fourteenth Amendment.
Blair’s letter caused an uproar—with Republicans denouncing it as “revolutionary” and Democrats backing away as they saw its potential for electoral disaster. Nonetheless, Blair remained on the ticket. Together with the Democratic platform’s repeated constitutional denunciations of Reconstruction, a Democratic electoral victory would have reopened the questions raised by Secretary Seward’s abrupt about-face on the Fourteenth Amendment. Here is the way the New York Times framed the issue in an editorial on “The Question Before the People”:
The all-important question presented to the people, North and South, is not whether a Republican or Democratic Administration shall rule the country. The political conflict which agitates every section of this continent is not simply partisan, as in ordinary cases …
The military success which closed the war for the Union only furnished a basis for the restoration of peace…. The laws, which during the war had been silent, must now speak again and ratify and secure the results gained on the battle field. But ordinary legislation might be repealed; hence the necessity of incorporating in a constitutional amendment the legal conditions of a more perfect union …
In a great measure this result has been achieved, through the fourteenth amendment. But the people cannot shut their eyes to the fact that this has been accomplished in the very teeth of the former Secessionists, and that the means through which it has been accomplished are pronounced unconstitutional and invalid by the Democratic Party. The feeling of insecurity, therefore, as to this most vital element in the restoration of peace, still remains. It has still to be decided by the popular vote whether the war had any real significance, whether it accomplished anything of permanent value for the nation.88
Such editorials emphasize the decisive importance of the race against the constitutional clock in the American scheme of government. As we have seen, the Fourteenth Amendment barely reached the finish line at the end of July—and then only as a result of switches in time by the President and Court. If the Convention/Congress had lost this race because the President or Court had remained intransigent, the editorials would have contained a very different message. Republican papers like the Times would have been unable to point to the Fourteenth Amendment as evidence that the great constitutional aim of the war had been largely “achieved,” and that the only task which remained was to remove a residual “feeling of insecurity.” Instead of holding up the Blair letter as evidence of the Democrats’ “revolutionary” campaign to destroy the emerging status quo, the Republicans would have been still in the midst of their own revolutionary effort to ratify the Fourteenth Amendment. With chaos continuing in the South, would Northern voters have continued to support the Republicans?
We will never know, but the importance of the switches in time are suggested by the election returns. The Republicans won big in Congress—gaining a 2-to-1 majority in the House, 5-to-1 in the Senate89—but the Presidential returns told a different story. Grant’s substantial Electoral College majority was belied by his thin margin of 300,000 popular votes. Since more than a half-million black Americans voted under the terms of the Reconstruction Acts, this meant that most whites voted for Democrats Horatio Seymour and Frank Blair!90
The exclamation point marks a high point in the Republicans’ boot-strapping operation. Recall that, under the leadership of Bingham and other moderates, the Convention/Congress had imposed black suffrage on the South for the express purpose of implementing the popular mandate for the Fourteenth Amendment that the Republicans had earned from the elections of 1866. Having redefined the Southern polities in the name of the nation to include blacks, the Convention/Congress now invited these very same black people to play a decisive role in consolidating the amendment in the elections of 1868. The result was a conceptually complex, but politically exhilarating, triumph of constitutional redefinition. We the People of the United States had somehow managed to reconstruct itself—whereas before, We the People consisted of a union of states that defined their own citizenship criteria, it now consisted of a union in which the People of the Nation imposed fundamental criteria of citizenship on the people of each state. While such a revolutionary redefinition of nationhood has often required a radical break with preexisting institutions, the Americans had somehow managed the process through a chain reaction of unconventional adaptations culminating in 1868—when the black citizens of the South used the unconventional voting rights granted them by the Reconstruction Acts to consolidate the very amendment that guaranteed them equal citizenship in the first place. By continuing to adapt national elections for purposes never contemplated by the Federalists, We the People of the United States had now fully dedicated itself to the proposition that “[a]ll persons born or naturalized” in America were entitled to “the privileges [and] immunities of citizens of the United States” that were beyond the power of any state or locality to abridge.
Viewed from a nuts-and-bolts perspective, Grant’s election also solidified the constitutional baseline established provisionally by the second proclamation issued by Secretary Seward on the Fourteenth Amendent. Given the Secretary’s July retreat before the Convention/Congress, only a Democratic electoral victory could have prevented the consolidation of the Fourteenth Amendment into higher law. Only then would it have been possible for a President to carry out Blair’s threat by ordering the new Secretary of State to issue a third proclamation on the Fourteenth Amendment, reasserting the doubts expressed in Seward’s first—and generating yet another cycle of unconventional struggle in Washington and the South.
By cutting this cycle short, the Republican victory resolved—in the words of the New York Times—“the feeling of insecurity” that still surrounded the amendment. In my lingo, it was a consolidating event, comparable to similar episodes in the aftermath of the Founding. Recall that, despite the Federalists’ success in gaining the formal ratification of the original Constitution, the First Congress opened with two states—Rhode Island and North Carolina—defiantly in dissent. So long as they remained outside the Union, the illegalities involved in the Founding remained on the very surface of public life, and could not be dismissed as historical curiosities. With the two dissenters insisting on their rights under the Articles of Confederation, it was perfectly possible for the Constitution to unravel. If one or more states had defected from the new Union and rejoined Rhode Island and North Carolina under the Articles, the problematic legality of the Founding would have remained a burning issue. Only when the two dissenters abandoned the Articles did the legal problems surrounding the Founding lose their political sting.
The election of 1868 marked a similar watershed. With Grant in the White House, and Republican majorities solidly in control of Congress, Reconstruction had reached a point of no return. With the Republicans in firm command of national institutions, the remaining states of the South had little choice but to ratify the Reconstruction amendments as the price for readmission to Congress.
For all their other differences, the Presidencies of Grant and Washington were discharging similar constitutional functions. By the end of their first term in office, these relatively apolitical generals were presiding over an institutional order that—on the surface at least—belied the fierce struggles of the day before yesterday. No longer were leading American institutions regularly denouncing each others’ constitutional legitimacy; nor were they issuing unconventional threats to one anothers’ very existence. As in 1792, so in 1872, the new regime had emerged as the only game in town.
I do not mean to deny the obvious. Both in the 1790’s and the 1870’s, there were lots of people around who were grimly determined to undermine the unconventional victories that Federalists and Republicans had proudly proclaimed in the name of the People. At least in hindsight, both moments of constitutional consolidation are laden with bittersweet ironies. Looking back across the centuries, it is clear—to us at least—that the political pendulum was already beginning to swing away from the revolutionary nationalisms of the Federalists/Republicans just as they were proclaiming their triumph in the name of the People.
But not before they managed to anchor their legal contribution into the very bedrock of our constitutional order. We turn, then, to the final act of consolidation—the moment at which the Supreme Court made it plain that, despite their problematic pedigree, the Reconstruction amendments would serve as a source of enduring constitutional meaning for the indefinite future.
When we last noticed the Court, it was in helter-skelter retreat—deferring to December any further consideration of the Convention/Congress’s assault on its jurisdiction in McCardle’s case. But once December arrived, the Court’s next step was by no means foreordained: Would it follow the election returns or launch another legalistic attack on Reconstruction that would disrupt the consolidating tendencies of the Grant Administration?
The Justices first moved in the direction of disruption—before pulling back onto the consolidating course.
As soon as Grant took office, the Republicans moved quickly to extend their control over the Court. This involved undoing some of the extraordinary steps they had taken in the recent past. In July of 1866, at the height of its struggle with the President, the Convention/Congress had responded to Johnson’s nomination of his Attorney General, Henry Stanbery, as a Justice by enacting a remarkable “court-shrinking” statute. Under its terms, the retirement of a sitting Justice would not create a vacancy until the number of Justices was reduced to seven—thereby making it impossible for Johnson to appoint Stanbery, or anybody else, over the near term. With Grant in the White House, the Forty-first Congress quickly passed a statute expanding the Court back to nine, effective at the December term in 1869.91 After some delay occasioned by the death of one nominee and the unpopularity of another, Grant managed to gain Senate confirmation of Justice William Strong in February and Justice Joseph P. Bradley in March of 1870.
The results were dramatic. A week before Strong arrived, the Justices had voted 4 to 3 to invalidate one of the great acts of the Convention/Congress making paper money into legal tender of the United States.92 While fiat money may seem uncontroversial to modern Americans, it profoundly shocked nineteenth-century lawyers—who had great trouble seeing how, given the Federalists’ notorious hostility to paper money, their Constitution could be read to authorize Congressional creation of greenbacks. It is merely anachronistic for moderns to look with bemused condescension upon the decision of Chief Justice Chase invalidating the Legal Tender Act. To the contrary, the seriousness of Chase’s legal concerns is heightened by the fact that he was the Secretary of the Treasury at the time the greenbacks were issued. Chase’s willingness to repudiate his own decisions at the Treasury cannot be explained without supposing that the Chief Justice was acting upon his good-faith understanding of Federalist constitutional principles.93
But as soon as the two new Justices came on the bench, they immediately moved to reverse this judicial assault on Republican economic policy.94 The new five-man majority did not even wait to publish an opinion before announcing their decision upholding greenbacks in May of 1871.95 The opinions, when they were finally published the next January, were bombshells. Speaking for the Court, Justice Strong disdained the textual path that might seem obvious to moderns. After all, the Constitution explicitly says that Congress can “coin Money [and] regulate the Value thereof,” and nowhere does it limit this power to the issuance of currency backed by gold and silver. It does not seem much of a stretch to read this language as authorizing greenbacks whenever Congress deems it necessary and proper.
But Strong insisted on making life difficult for himself. His opinion refused to rely on the Constitution’s textual grant of power over money, implicitly conceding that the dissenters were right in insisting that the Founders would have been horrified by fiat money. Casting about for other sources of national power, Strong led the Court to repudiate other elements of constitutional orthodoxy. It is a mistake, he declared for the Court, to suppose that the Federalist Constitution established a national government of limited powers. To the contrary, “important powers were understood by the people who adopted the Constitution to have been created by it, powers not enumerated, and not included incidentally in any of those enumerated….”96 The other new appointee, Justice Bradley, joined the nationalistic chorus in a concurring opinion:
The United States is not only a government, but it is a National Government, and the only government in this country that has the character of nationality….
Such being the character of the General Government, it seems to be a self-evident proposition that it is invested with all those inherent and implied powers which, at the time of adopting the Constitution, were generally considered to belong to every government as such….97
Though Bradley and Strong both indulged ritual gestures toward the Founding, no Federalist would have made such extravagant claims. But in the new Republican vision of the Union, the national government could assert “inherent” authority based on its standing as “the only government in this country that has the character of nationality.”
Given its emphatic switch on legal tender, I have no doubt that a reconstituted Court would have responded with the same assertive nationalism if it had been obliged to face a constitutional challenge to Reconstruction and the Fourteenth Amendment. Just as Strong and Bradley rejected the restraints imposed by Federalist text and principle when it came to Republican economic policy, they would have done the same when it came to Republican constitutional policy—treating the Federalist principles of Article Five with no greater respect than the Federalist principles of sound money. During the Grant Administration, the Court came very close to this moment of truth—only to swerve and take a less melodramatic approach.
As with legal tender, the story begins with a legalistic opinion by Chief Justice Chase. On April 12, 1869—almost two years after it dropped McCardle—a unanimous Court defended its decision. Its retreat, Chase explained, had nothing to do with prudence, everything to do with principle. After all, the jurisdictional statute under which McCardle came to the Court had only been enacted in the previous year. If Congress could grant the Court new jurisdiction in 1867, why could it not take it away in 1868?
Given this strong affirmation of Congressional power, Chase readily acquitted the Court of any hint of impropriety suggested by its helterskelter retreat: “Jurisdiction is power to declare law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause. And this is not less clear upon authority than upon principle.”98 But there were hidden dangers in this resounding transformation of prudence into principle: Wasn’t Chase proclaiming the death knell of judicial review? Whenever a future Court threatened to declare a statute unconstitutional, couldn’t the dominant faction in Congress strip it of jurisdiction?
Chase responded in one of the most brilliant concluding paragraphs in Supreme Court history:
Counsel seem to have supposed, if effect be given to the repealing act in question, that the whole appellate power of the court, in cases of habeas corpus is denied. But this is an error. The act of 1868 does not except from that jurisdiction any cases but appeals from Circuit Courts under the act of 1867 [like the one made by McCardle]. It does not affect the jurisdiction which was previously exercised.99
Having dressed up the Court in a mantle of principle, Chase had majestically redefined the principle. Though everybody had thought that McCardle was a “great case” involving the plenary power of Congress to destroy the Court’s jurisdiction, Chase blandly informed the world that it was mistaken. McCardle merely decided that Congress could deprive litigants of one path to the Supreme Court so long as another had been left open. Later generations returning to McCardle in search of a clear answer to a basic question will be rewarded only by Chase’s enigmatic smile. On the one hand, the fact remains that the Court did acquiesce to Congress at a critical moment of constitutional transformation; on the other, the Court’s opinion did not recognize Congress’s unconditional and plenary power to strip it of jurisdiction.
While Chase’s brilliant maneuver had reduced McCardle’s long-run institutional damage, it had a different short-run consequence. Lawyers for other aggrieved Southerners would predictably seek to exploit the opinion to blaze other jurisdictional trails to the Court, and propel the Justices into a belated confrontation with Grant and the Republican Congress over Reconstruction—which in 1869 was still proceeding in Georgia, Mississippi, Texas, and Virginia.100 It fell to Edward Yerger to serve as legal trailblazer. Yerger had been accused of killing a Union officer assigned as mayor of Jackson, Mississippi. As in McCardle, the commanding general denied Yerger’s request for a jury trial, ordering him to stand before a military commission under Section 3 of the Reconstruction Act.
After hearing the case, the commission sentenced Yerger to death. However violent his crime, Yerger’s case raised most of the same issues as McCardle’s.101 Could Congress deny a Southern civilian a jury trial when the civilian courts were open?102 Did it have the power to use the Union Army to destroy a Johnsonian government in an effort to gain ratification of the Fourteenth Amendment?
With Chase’s opinion in McCardle now before him, Yerger’s lawyer invoked the Supreme Court’s jurisdiction through traditional habeas corpus procedures that antedated the statute Congress had repealed in McCardle’s case. This gambit was successful. On October 25, 1869, the Chief Justice accepted Supreme Court jurisdiction over Yerger’s case. Ex parte Yerger was now at the same point at which Congress had been provoked into its jurisdiction-stripping measures in McCardle. Since Strong and Bradley had not yet ascended to the bench, there was every reason to fear a negative outcome. As Charles Fairman puts it, “on a candid estimate, a decision on Yerger would probably go against the Government; indeed, in a substantial sense the Government could not possibly win.”103
Republicans once again moved on the offensive. As Congress reconvened in December 1869, Senator Charles Sumner filed a bill104 depriving the Court of all appellate jurisdiction over habeas corpus.105 The judiciary committee transformed Sumner’s bill into a vehicle for a different, but no less extreme, response. Striking everything except the title, it substituted the very same proposal that its chairman, Lyman Trumbull, had made two years previously. This would have explicitly forbidden any court from questioning the constitutional validity of Reconstruction.106 If either Sumner or Trumbull had succeeded, the Chief Justice could no longer deny, by artful statutory construction, that the Convention/Congress was deadly serious about subordinating the Court to the Republican vision of the Union.
Once again, the Court seemed to be propelling itself into a war it could not win. If it moved quickly to vindicate Yerger, it either confronted another round of jurisdiction-stripping or a variation of the Legal Tender scenario, in which Justices Strong and Bradley came to the rescue with a ringing defense of the intrinsic power of the Convention/Congress to insist on Reconstruction in the name of the Nation.
But at this point, President Grant intervened to cut short the cycle of constitutional confrontation.107 Even before Congress convened in December, the new Republican Attorney General had taken steps to assure that the Court would never hear Yerger’s case. The day after Chase handed down his opinion asserting jurisdiction, the following note appeared in the minutes:
Mr. Phillips stated to the Court that on account of an arrangement in progress between the Attorney General and the counsel of petitioner, no motion will be made this morning for further proceedings; but if there be no objection on the part of the Court, counsel will postpone moving until a subsequent day of the term.
The Chief Justice said, It is undoubtedly matter of discretion with the counsel for the petitioner to move for the writ of Habeas Corpus. The point of jurisdiction having been determined, the Court will hear a motion for the writ whenever counsel shall see fit to make it.108
Phillips then waited until February 23, 1870, when the reconstructed state of Mississippi was finally recognized in the halls of Congress. On the very same day, he reported an agreement to transfer Yerger to the new state authorities to allow them to prosecute him for murder.109 A similar settlement was reached in a companion case from Texas.110
And then there were none. Once Georgia was readmitted in July of 1870, there were no longer any more whites who could bring concrete cases challenging Army administration of Reconstruction. There is, then, a humdrum procedural reason why the Legal Tender Acts generated a highly visible vindication of national sovereignty while no similar episode marks the consolidation of the Fourteenth Amendment into higher law. Since greenbacks were circulating into the indefinite future, an endless stream of litigants would badger the Court about their constitutional status. With Reconstruction winding down under Grant, the Justices could avoid any further struggles among themselves—not to mention the President, Congress, and the People—by playing a waiting game.
Until a very different kind of lawsuit came along. After 1870, Southern whites found themselves in a paradoxical position. They suddenly became leading advocates of the very amendment they had so bitterly opposed. The new Republican governments of the South were now dominated by interracial coalitions that left many whites out in the cold. So long as these coalitions remained in power, conservative whites would respond to legislative defeat in the good old American way—by going to the courts, and using all available legal tools to reverse their legislative defeats. And what could be a better weapon than the shiny new Fourteenth Amendment’s promise of citizenship, liberty, and equality?
So matters stood in 1873, when the Court finally handed down its first considered decision on the Fourteenth Amendment. The Slaughterhouse Cases were brought at the behest of white butchers of New Orleans against their new state government, which had created a slaughterhouse monopoly that threatened to freeze them out of business. On the butchers’ view, the Reconstruction amendments gave whites, as well as blacks, fundamental rights as American citizens—including the right to compete in a free market without unjustified legislative restriction. In a famous 5-to-4 decision, the Supreme Court rejected this claim.
But it is not this aspect of the case—already discussed in the first book of this series111—that need concern us. Our focus here is not substance but process, not with Slaughterhouse as the first great case interpreting the meaning of the Reconstruction amendments, but as the last great step in their consolidation. Given this interest, the Court’s prologue commands special attention. After stating the facts of the case, Mr. Justice Samuel Miller locates his problem in the flux of time. He begins by viewing the Federalist Constitution, and its early amendments, from a very great distance. These fundamental texts, Miller explains, “have become … historical and of another age.” The next sentence juxtaposes this historical past with the living present: “But within the last eight years three other articles of amendment of vast importance have been added by the voice of the people.”112
Miller’s declaration may seem bland, but it represents a crucial turning point. The Court’s hostility to Reconstruction had been a continuing source of grave anxiety to Congress and the President; but this single sentence places the country on notice that its period of anxiety is at an end. The Justices speak with a unanimous voice. While they later divide sharply over the meaning of the amendments, all nine unconditionally accept their validity.
Reflect upon the precise words through which the Court expresses this epochal act of recognition: “… have been added by the voice of the people.”113 Justice Miller speaks the unmediated language of popular sovereignty without trying to establish the amendments’ legal pedigree under Article Five. His entire rhetorical framework is hostile to such formalisms. Rather than creating the fiction of a smooth transition from the 1780’s to the 1860’s, he has presented a radical disjunction between the Founding texts of “another age” and the living “voice” of contemporary Americans. As the Court describes the genesis of each amendment, its unconcern with the formalities becomes apparent. Consider Miller’s treatment of the Fourteenth Amendment. In his stylized account, the “statesmen who had conducted the Federal government in safety through the crisis” recognized that “something more” than the Thirteenth Amendment was necessary to protect “the unfortunate race who had suffered so much. They accordingly passed through Congress the proposition for the fourteenth amendment, and they declined to treat as restored to their full participation in the government of the Union the States which had been in insurrection, until they ratified that article by a formal vote of their legislative bodies.”114
These are my italics, not Miller’s. While the italics cry out for a modicum of legalistic hand-wringing over Article Five, this is the last thing the Court has in mind. Rather than explaining why an amendment obtained under such conditions merits recognition as legally valid, Justice Miller passes on to other things, as if nobody had ever thought to raise constitutional questions about the decision by Republican “statesmen” to override the Southern veto of the Fourteenth Amendment.
Not that the Justices supposed they were fooling anybody. As Miller explains, his “recapitulation of events, almost too recent to be called history,”115 involved episodes that are “fresh within the memory of us all.”116 The ease with which he evades the problematics of validity cannot be attributed to a sudden attack of amnesia—either amongst the nine Justices or the population at large. It is a tribute to the influence of common law methods on constitutional adjudication. Unlike constitutional courts in Europe, the Supreme Court gives no advisory opinions. Like a common law court, it waits for real-life litigants to bring unresolved constitutional questions to its attention. But neither side of the Slaughterhouse controversy was interested in raising the question of validity—certainly not the white butchers, who were trying to use the new amendments to attack the new monopoly imposed by the ascendant black-and-white authorities in Louisiana; certainly not the defenders of the slaughterhouse monopoly, who could denounce Reconstruction only at the cost of renouncing their own special privileges. Since both sides were happy to finesse the question of validity, the Court acted consistently with common law norms in ignoring the deep questions that everybody knew lurked just below the surface.117
Nonetheless—and here again common law methods are at work—Slaughterhouse effectively ended all serious legal debate on the validity of the Fourteenth Amendment. For common lawyers, the key is not what a court says, but what it does. Although the Justices had not explained the basis of their action, their unanimous decision on validity operated as a decisive precedent. Henceforth, a lawyer would be laughed out of court if he tried to persuade a judge to scrutinize the doubtful pedigree of the Reconstruction amendments. With every passing year, the courts would generate a mountain of case law burying the amendments’ problematic pedigree under layers upon layers of learned discussion that simply took for granted the binding force of the Reconstruction amendments. With Slaughterhouse, the bandwagon had come to rest at its final destination.
Just in the nick of time. As consolidation was proceeding in the courts, the Ku Klux Klan was embarking on a guerrilla campaign of terror that aimed for nothing less than the obliteration of the Republican experiment in interracial politics. Grant responded with an erratic use of the Union Army to sustain law and order, but he was simply not up to the strategic and moral demands of leadership.118 Under a reign of death, blacks retreated from the polls, allowing whites to vote one Republican government out of office after another. By the end of Grant’s Administration, only three Republican governments remained (barely) standing with the aid of Union troops.
National politics was also turning against the Republicans. The devastating Panic of 1873 generated a Democratic landslide in the 1874 elections. For the first time since 1860, Democrats would control the House, and they had cut into the Republican majority in the Senate.119
Within this changing political context, the electoral crisis of 1876 operated as an acid test of the consolidation process. The Democratic candidate, Samuel J. Tilden, was the clear popular winner, beating the Republican Rutherford B. Hayes by 250,000 votes.120 But Tilden was deprived of the White House by an extraconstitutional Electoral Commission convened to resolve disputed returns from the three Republican states remaining in the South.121 These states had reported two rival sets of election returns—one awarding the electoral vote to Tilden, the other to Hayes—and it was up to the Commission to decide which ones to recognize. The body, consisting of five Senators, five Representatives, and five Justices, upheld all the Republican electors on a party-line vote of 8 to 7—with Mr. Justice Bradley, who owed his seat to the Republicans’ court-packing statute of 1870, casting the decisive ballot in each case. This decision made Hayes President by a one-vote majority in the Electoral College, despite his clear defeat in the popular vote.122 To the disgust of millions of his Democratic partisans, Tilden accepted this outcome in a remarkable show of statesmanship that deserves a place of great honor in the annals of the Republic. Hayes, in turn, stopped giving military support to the remaining Republican governments of the South, leading to their rapid collapse.
From the distance of 125 years, we can now recognize that the stage was being set for a new national politics. The burning issues of race and Union began to be displaced by the crises of industrial capitalism. New movements would emerge from the farms and the cities to challenge the emerging status quo. As the 1870’s moved into the 1880’s, the air filled with denunciations of big business and its corruption of American government. Like their fathers and grandfathers and great-grandfathers, a new generation would express their populist impulses by founding a new political party, the Populists, as a vehicle for a frontal assault on the status quo. But as always, these variations on old themes generated a surprising outcome. The rising Populists would never celebrate the victory of a Jefferson or a Jackson or a Lincoln. They would see their candidate William Jennings Bryan decisively defeated in the Presidential elections of 1896 and 1900. If you will forgive my lingo, the new century would open with a failed constitutional moment—with fateful consequences that still reverberate today.
But in the America of 1876, all this was for the trackless future. The operational question was how to treat the immediate past—the period of Reconstruction that was so evidently coming to a close. In particular, Americans were then very conscious of a choice that we have long forgotten: Should the next generation accept the Fourteenth Amendment as a valid act of higher law, or should it use the amendment’s problematic pedigree to discredit it?
From this vantage point, the answer given by the Democrat Tilden is especially important. Here is his open letter published at the height of the fall campaign:
The questions settled by the war are never to be reopened. The adoption of the thirteenth, fourteenth, and fifteenth amendments to the Federal Constitution closed one great era in our politics…. They close the chapter; they are and must be final; all parties hereafter must accept and stand upon them, and henceforth our politics are to turn upon questions of the present and the future, and not upon those of the settled and final past.123
Even if Tilden had gained the White House, there is no reason to believe he would have sought to erase the Reconstruction amendments from the books (how they would have fared on the ground is another matter). Suppose the contrary, however, and imagine President Tilden repudiating his campaign rhetoric once in office. Even then, he would have confronted a Court that had unanimously received the Reconstruction amendments into higher law three years before in Slaughterhouse. It was no longer within the power of a single President to reverse this judgment, even if he could convince the Senate to confirm Supreme Court nominees devoted to the Johnsonian interpretation of the ratification crisis. Given the 9-to-0 vote, reversing Slaughterhouse would require decades of Democratic ascendancy in the White House and the Senate, as well as remarkable ideological consistency in the selection of nominees to the Supreme Court. President after President would have had to fend off potential nominees who did not toe the Johnsonian line but were politically attractive for other reasons. In short, a formal repudiation of the constitutional legacy of Reconstruction was now operationally impossible.
Contrast this with the situation prevailing when Secretary Seward had reluctantly proclaimed the amendment’s validity in July of 1868. Imagine, for example, that the electoral crisis of 1876 had occurred in 1868. Instead of beating Seymour by 250,000 votes, Grant went down by 250,000 (which was the margin of the Republican popular vote deficit in the Tilden-Hayes contest). Suppose next that the Republicans had attempted to defy the will of the majority by constructing an Electoral College victory for Grant with the assistance of Republican electors from the newly reconstructed Southern states. Suppose next that Seymour had responded with the same remarkable statesmanship that Tilden displayed, and allowed Grant to move into the White House without further agitation. Suppose, finally, that Grant responded in the manner of Hayes—with an appropriate gesture of reconciliation to the majority of Americans who had voted against him at the polls. Within the context of 1868, what would this gesture have looked like? In particular, would the Fourteenth Amendment have been sacrificed as part of the accommodation?
After all, we are speaking of a time when Seward’s July proclamation casting doubt on the amendment was still fresh in the public mind, when Blair’s denunciations of Reconstruction provided a defining issue of the election campaign, when the Supreme Court had not yet been re-expanded from seven to nine, when …
To put it mildly, it is easy to tell a story that ends unhappily for the Fourteenth Amendment. At the very best, the pages of the United States Reports would have told a much more turbulent tale—full of ringing opinions denouncing and defending the effort by the Convention/Congress to override the Southern veto of the Fourteenth Amendment. Perhaps the Reports might have contained many such confrontations, as judicial majorities shifted to and fro, in the manner of the Legal Tender Cases, before settling down one way or another sometime in the 1880’s.
This thought-experiment puts in bold relief the importance of the Grant years to the legitimation of the Fourteenth Amendment. It also suggests why dualist theory places a high value on successful consolidation. This emphasis is alien to constitutional theorists who suppose Americans should continue the burdens of constitutional politics indefinitely. These strong democrats124 cannot conceal their disappointment as they see the American people retreat in 1877 from the heavy sacrifices they had been enduring in the name of citizenship. For them, the fact that a few constitutional amendments were now securely on the books is small consolation for America’s retreat from racial justice in the South.
Things look different to the dualist, who neither seeks nor expects the indefinite extension of constitutional politics. So far as he is concerned, Americans have a fundamental right to say Enough Is Enough to the mobilized engagements demanded by a politics of popular sovereignty, and to declare that the time has come to turn to other things—either the pursuit of more private interests or the slow elaboration of a new constitutional agenda for fundamental change (or both).125 Within this framework, the Constitution makes a key contribution when it brings an era of successful mobilization to a decisive end, as in the Slaughterhouse Cases, rather than allow the collective sense of accomplishment to be frittered away by a series of inconclusive elite manipulations envisioned by my alternative thought-experiment.
Similarly, as the dualist observes Hayes allowing the fall of the last Republican governments of the South, he does not suppose that this moment could have been long delayed if only the Republicans had sustained the burning faith of 1866. He takes it for granted that popular disengagement from yesterday’s constitutional agenda is bound to occur, and asks a different question: How well did American institutions—and in particular, the Supreme Court—manage to preserve the spirit of 1866 during the long period of normal politics inaugurated by the Hayes Administration? What does this judicial experience teach us about the strengths and limits of dualist constitutionalism?126
I will return to these questions in volume three.
For now, let us return one last time to the hypothetical Grant-Seymour “Compromise of 1868.” Suppose that Grant did not simply abandon the Fourteenth Amendment as part of a deal with Seymour to gain the White House. Instead, he stands by Seward’s second proclamation and instructs his Attorney General vigorously to prosecute cases like Yerger that call upon the Supreme Court to resolve the constitutional status of Reconstruction and the Fourteenth Amendment. Suppose further that the Court flip-flops for a decade until, after several more Presidential elections, it finally comes down unanimously in favor of the Fourteenth Amendment. Suppose, finally, that you agree with me that this outcome would have been much worse for the country than what actually happened in Slaughterhouse.
Then, you will reach a final paradox. Though the hypothetical outcome would have been much worse for Americans of the nineteenth century, it would have advantaged one small group who live much later on. This is the group composed by the readers of this book—which would never have been written, since the problematic pedigree of the Fourteenth Amendment would have been a standard topic in every course on constitutional law that attempted a comprehensive overview of the “great cases” rendered by the Supreme Court.
The very existence of this book is, then, a testimony to the remarkably narrow fixation of modern scholarship on the Supreme Court. Pace Tocqueville, it is not the case that every important constitutional question ends up in the courts for full-dress resolution. Sometimes, as in Slaughterhouse, courts simply acknowledge the constitutional conclusions reached by others after long and bitter years of argument.
The challenge is to take these non-Tocquevillean truths seriously. The great precedents established by Presidents and Congresses, in dialogue with their fellow citizens, command respect even if their significance is given scant acknowledgment in judicial opinions. It is about time for lawyers to move beyond their myopic focus on the work of the courts. It is not too late for them to redeem the promise made by the first words of the constitutional text, and to treat We the People as the principal architect of America’s constitutional destiny.
*Most ominous was the President’s warning in his latest Annual Message: “How far the duty of the President ‘to preserve, protect and defend the Constitution’ requires him to go in opposing an unconstitutional act of Congress is a very serious and important question, on which I have deliberated much, and felt extremely anxious to reach a proper conclusion. Where an act has been passed according to the forms of the Constitution … executive resistance to it … would be likely to produce violent collision between the respective adherents of the two branches of the Government. This would be civil war; and civil war must be resorted to only as the last remedy for the worst evils…. The so-called reconstruction acts, though plainly unconstitutional as any that can be imagined, were not believed to be within the class last mentioned.” See James Richardson, ed., 6 Messages and Papers of the Presidents 568–569 (1898).
But would a conviction by the Senate on a bill of impeachment fall into “the class last mentioned”?