The Republic for Which It Stands: The United States during Reconstruction and the Gilded Age, 1865-1896 (Oxford History of the United States)

by Richard White

The touchstone for American politics of Reconstruction at the end of 1865 was a question: What would Lincoln have done?

there were clear structural necessities: how to readmit the Southern states, how to pacify and occupy the West, how to define the new powers of the federal government, and how to turn former slaves into citizens.

If Congress seated the Southern delegations, the war power would come to an end once civil government was restored in all states. Southern Democrats, their representation increased by the abolition of slavery and with it the end of the three-fifths clause, would, in combination with Democrats from the North, threaten Republican dominance. As an Illinois Republican put it, “the reward of treason would be increased representation in the House” and an increase in the Southern electoral vote.

Radicals prepared the ground for unilateral action by Congress. They had three powerful constitutional weapons. The first was familiar: the right of Congress to determine its own membership, that is the power to reject members even if they had won election in their states. The second, untested, weapon was the constitutional clause guaranteeing every state a republican form of government. This was, in Senator Charles Sumner’s words, a “sleeping giant.” Nothing else in the constitution gave “Congress such supreme power over the states.” The third were the war powers that allowed the continuing occupation of the South.

Sumner, with his usual erudition, seized the ground for the Radicals. His speech stretched over two days in February 1866 and demanded forty-one columns of small print in the Congressional Globe.

Sumner asserted that without equality of citizens before the law and full consent of the governed, a government could not be considered republican. It defined a standard that the North no more met than the South.

January 1866 Republicans offered the president two bills that they regarded as a workable compromise between the Radicals’ desire to remake the South and Johnson’s desire to readmit the South as it was to the Union. One bill expanded the duties of the Freedmen’s Bureau and extended its life; the second guaranteed freedpeople basic civil rights.

This was Congress’s response to Southern outrages and the Black Codes, but the bills did not give freedmen the vote, and they did not redistribute land. The Radicals supported them because the bills were all they initially could get and because they hoped that more ambitious measures would follow.

Civil Rights Bill of 1866, which passed the Senate in early February. It gave teeth to the Thirteenth Amendment and represented a breathtaking extension of federal power.

it guaranteed to all citizens the “fundamental rights belonging to every man as a free man”: the right to make contracts, to sue in court, and have the state protect their property and person. Federal marshals, attorneys, and bureau agents could bring suit in federal court against any state officials or state laws that violated these protections.

The Civil Rights Act secured only civil equality, giving the freedpeople access to the legal system and protection from some kinds of discriminatory laws. It did not give them political equality: the right to vote and hold office. Nor did it give them social equality: free and equal access to public venues, from streetcars and railroad cars to theaters and schools.

Primary jurisdiction for enforcing civil rights still remained in the state courts. Once state laws were stripped of overt discrimination, de facto discrimination by sheriffs, judges, or ordinary citizens would be hard to prevent under the act.

Johnson vetoed the Freedmen’s Bureau bill. He denounced it as unconstitutional and expensive and as encouraging black “indolence.” Congress sustained, if barely, this veto,

Johnson gave an impromptu speech that provided more evidence that he should never give impromptu speeches. He equated Stevens, Sumner, and the abolitionist Wendell Phillips with the Confederate leadership. They were, he said, as bad as traitors since they too aimed to undermine the Constitution. The president referred to himself 210 times in a speech of little more than an hour, or three times every minute.

Johnson vetoed the Civil Rights Bill as an attack on the rights of white people and as a move to centralize all power in the federal government.

Johnson’s political calculation was that by framing the issue as a dual contest between the rights of whites and the rights of blacks, and between the expansion of the federal government and the preservation of local governments, he could not lose.

Indiana Republican Oliver P. Morton, however, went straight to the weakness of Johnson’s strategy.

Morton hoisted what became known as the bloody shirt: the call to remember northern sacrifices and the Democrats’ taint of treason.

Morton mounted to his climax, aligning the president with the Democrats: And this party … proclaims to an astonished world that the only effect of vanquishing armed rebels in the field is to return them to seats in Congress, and to restore them to political power. Having failed to destroy the constitution by force, they seek to do it by construction, with … the remarkable discovery that the rebels who fought to destroy the constitution were its true friends, and that the men who shed their blood and gave their substance to preserve it were its only enemies.

On April 6, 1866, Congress overrode Johnson’s veto of the Civil Rights Bill. It was the first time in American history that Congress had overridden a presidential veto of a major piece of legislation.

The Senate, however, obtained its necessary two-thirds majority only by expelling a New Jersey Democrat.

the second attempt to extend the life of the Freedmen’s Bureau succeeded. In passing a ne...

Grant, who had initially pushed demobilization, had changed his mind. He issued General Orders No. 3 in January 1866 to protect soldiers in the South from lawsuits, and had then allowed his commanders to use its rather vague and general provisions to protect freedpeople from the Black Codes.

In an attempt to stop Congress from using war powers, on April 2 Johnson proclaimed the end of the rebellion everywhere but in Texas, though in practice the proclamation did not end martial law because the power to declare war, and restore peace, belonged to Congress and Southern representatives had not yet been restored to Congress.

the army remained nervous as Southern officials tried to arrest and sue U.S. soldiers. Far from defending the army and its officers, Johnson welcomed the Supreme Court’s ex parte Milligan and Garland decisions in 1866, which indicated limits, as yet unclear, on the reach of martial law, and the Cummings decision in 1867, which ruled the ironclad oath unconstitutional.

By July 1866 there were only twenty-eight thousand soldiers in the entire South, and eighty-seven hundred of them were in Texas.

The change was particularly stark in the Deep South. There were only five posts in Mississippi by September 1866, five in Georgia, seven in Alabama, and fourteen in South Carolina.14 These troops were enough to give hope to freedpeople and Unionists but outside of the towns not enough to provide protection.

The demobilization of the army gave unreconciled Confederates freedom and confidence. With one hand, the government had passed new laws and assumed new powers; with the other, it had eliminated much of its ability to enforce them.

The slaughters in Memphis and New Orleans shocked the North both because of the carnage and because of their snarling challenge to federal authority. These were not attacks by nightriders; police led the crowds. Southern governments created under Presidential Reconstruction seemed little more than progeny of the Confederacy and children even more brutal than their parent. The Radicals used the violence to persuade the Northern electorate of the need for occupation of the South and the necessity for the Fourteenth Amendment, guaranteeing black civil rights.

The Republicans had proposed the Fourteenth Amendment to the Constitution to enshrine the Civil Rights Bill of 1866 in the Constitution itself. They wanted to protect it from the Supreme Court and future congresses, a particular danger since the end of slavery meant the demise of the three-fifths clause, which would add a million and a half people and twenty congressional seats to the South’s total. Unless black people could vote, those seats would probably be overwhelmingly Democratic. Politically, the Republicans also needed to provide a route to eventual peace as an alternative to Johnson’s April announcement that organized resistance had ceased everywhere but in Texas.

Johnson had not rescinded martial law or restored habeas corpus. His proclamation was purely for political and rhetorical effect.

As finally approved by Congress, the amendment did not include black suffrage, but it sought to exact a price for treason. All those Confederates who had served in federal or state governments or in the military before the war and had taken an oath to uphold the Constitution were made ineligible for political office without a two-thirds vote of Congress. The proposed amendment also torpedoed Southern plans to have the United States assume the Confederate debt and pay pensions to Confederate soldiers. Both would now be unconstitutional.

Stevens guaranteed that ratifying the amendment would be a necessary but not sufficient requirement for the readmission of the Confederate states into the Union. If any state attempted to abridge the suffrage of male voters, except for crimes or participation in the rebellion, then it would lose a proportional amount of its representation in Congress.

The Republicans sought to abrogate judicial interpretations of the Constitution that, in the name of federalism, had limited the extension of a uniform set of rights applicable to all citizens everywhere in the Union. Congress intended the new amendment to extend the guarantees of the Bill of Rights so that they protected citizens against actions by the states as well as by the federal government.

Ultimately the amendment was Lincolnian: it sought, as had Lincoln, to make the sentiments of the Declaration of Independence the guiding light of the republic.

Stevens was disappointed. He thought it patched “up the worst portions of the ancient edifice” rather than freeing all American institutions “from every vestige of human oppression.” He regarded the amendment as an imperfect proposition, but he accepted it “because I live among men and not among angels.”

The National Union Convention that gathered in Philadelphia in mid-August in the wake of the riots represented Johnson’s attempt to join Southern conservatives with northern Democrats and conservative Republicans to form the basis for a new political party. But the convention only clarified the disunity among conservatives. There would be no new party, instead just a pledge from those in attendance to offer support for candidates in either party who would support Johnson.

Johnson decided to stake his political future on the congressional elections of 1866. He would campaign against the Radicals.

At the heart of Johnson’s fall campaign was his bitter opposition to the Fourteenth Amendment. He pushed hard to restore power to the South before it could be ratified and take effect.

Southern whites had long considered black people not only theirs to own but also theirs to define. This did not change with emancipation.

The white South remained determined to have blacks continue to be dependent on whites, even as they asserted that the end of slavery erased their old paternalist obligations to slaves.

What was developing in the South was a coercive labor system, which although not slavery, was not free labor either. It depended on extralegal violence, coercive laws, burdensome debt relations, and the use of convict labor to limit alternatives.

Congress had already turned Washington, D.C., and the territories into laboratories for their policies and had pushed for political equality. Congress had enfranchised blacks in D.C. and made universal manhood suffrage a condition for the organization of new Western territories.

The Republicans required Southern ratification of the Fourteenth Amendment if Confederate states were to be considered for readmission to the Union. Only Tennessee accepted these terms and reentered the Union in 1866.

To deal with the South, the Republicans in February passed the Reconstruction Act of 1867.

It divided the Confederate South, except Tennessee, into five military districts. The army was to protect freedpeople and Unionists from attacks on their lives and property and to supervise the calling of the state constitutional conventions. Congress required that blacks be able to vote for the delegates to the new constitutional conventions, while the Reconstruction Act denied the right to vote to those who had lost the right to hold office because of rebellion against the United States.

The governments formed under the new constitutions could ratify the Fourteenth Amendment and apply to reenter the Union. Until these new governments were formed, the state governments created under Presidential Reconstruction remained in place, although the military could remove officials for violation of the Reconstruction Act.

In December 1866 only about 0.5 percent of black adult males could vote. In December 1867 the figure rose to 80.5 percent, with the entire increase coming in the old Confederacy.

With blacks resistant to the appeals of their former masters and most white Southerners dubious about any compromise with Republicans, the movement for accommodation proved stillborn.51 The political lines in the South hardened.

Congress had so sloppily drafted the Reconstruction Acts that they required a majority of registered voters, not just a majority of those who actually voted, to approve the constitutions. Abstaining was thus as good as voting no, and suppressing the vote by intimidating black voters promised to pay real dividends.