Reconstruction

Reconstruction The process of reconstructing the Union began with the outbreak of the Civil War and lasted through the presidential election of 1876. It presented two challenges to the Union: the status of the seceded states and the future of African‐Americans. President Abraham Lincoln issued an executive order in 1863 that dealt with both by requiring that the constitutions of the seceded states undergoing Reconstruction had to abolish slavery as a condition of readmission to the Union. By 1865, Union military and civil authorities had begun a thorough reorganization of the South's political and social systems.

Lincoln appointed his secretary of the treasury, Salmon P. Chase, to replace Roger S. Taney as chief justice of the United States. Chase joined previous Lincoln appointees David Davis, Stephen J. Field, Samuel F. Miller, and Noah Swayne, but though the Court was dominated by Republican appointees, it split over questions involving executive power, federalism, and individual liberty. In the Prize Cases (1863), the Court sustained the president's powers to blockade Confederate ports. Though both cases presented Lincoln with political embarrassments, Ex parte Merryman (1861) and Ex parte Vallandigham (1864) upheld the national government's authority to arrest and detain civilians who posed security risks in states that had not seceded. In Gelpcke v. Dubuque (1864), the Court condemned state repudiation of public debts. On the whole, the Court moved circumspectly in the war years.

After Appomattox, however, the Court resolved constitutional issues in a more assertive spirit. In the Test Oath Cases of 1867 (Ex parte Garland and Cummings v. Missouri), the Court struck down federal and state requirements that individuals swear loyalty to the Union as a condition of practicing professions. This process had the effect of returning former secessionists to political power in the South. The 1866 decision in Ex parte Milligan raised again the Vallandigham question of the Supreme Court's jurisdiction to hear civilians' appeals from the decisions of courts martial and implicitly challenged the entire structure of military authority in areas removed from the theater of war (see Military Trials and Martial Law). These early Reconstruction decisions, combined with President Andrew Johnson's obstructive policies (such as his veto of all civil rights legislation and his amnesties and pardons for former Confederates), hobbled implementation of the Freedmen's Bureau Act, the Civil Rights Act of 1866, and the Military Reconstruction Acts of 1867–1868. As a result federal efforts to aid the freed slaves became a politicized constitutional debate.

After these early confrontations, the Supreme Court sidestepped direct contests with Congress over Reconstruction policies. In Mississippi v. Johnson (1867) and Georgia v. Stanton (1868), the Court declined an invitation by counsel representing anti‐Reconstruction interests to hold the Military Reconstruction Acts unconstitutional. In Ex parte McCardle (1869), the justices accepted the constitutionality of a statute that excised their jurisdiction in some habeas corpus appeals (though in Ex parte Yerger, decided the same year as McCardle, the Court reaffirmed the original reach of its appellate jurisdiction over habeas appeals conferred by the Judiciary Act of 1789). Chief Justice Chase invoked the political‐question doctrine to uphold congressional authority over Reconstruction policy.

In a variety of cases that challenged the evasion of the Thirteenth Amendment by “apprenticeship” agreements (In re Turner, 1867), violation of the Civil Rights Act (United States v. Rhodes, 1866) and the Fourteenth Amendment's inhibitions on the states (Blyew v. United States, 1872, and United States v. Hall, 1871), lower federal court judges or justices of the Supreme Court on circuit suggested that the Reconstruction amendments and statutes that implemented them created the power and perhaps the obligation of the federal government to protect the full spectrum of civil rights against the acts of individuals.

The Supreme Court, however, quashed these initiatives. Asserting the values of traditional federalism over individual rights, the Court affirmed the power of a state to deny a female attorney admission to the bar in Bradwell v. Illinois (1873). Despite the ratification of the Thirteenth Amendment, the Court upheld the validity of a contract made before the war for the sale of a slave in Osborn v. Nicholson (1873). In the Slaughterhouse Cases of 1873, the first decision that directly construed and defined the scope of the Reconstruction amendments, a 5‐to‐4 majority of the Court determined that the Constitution (including its recent amendments) created few federal civil rights and left most slaves at the mercy of the southern states for both the definition and the enforcement of their rights—cold comfort in view of the fact that the southern state governments were falling under the control of racist Democrats. The Court also rejected claims that the Fourteenth Amendment prohibited the states from denying women the right to vote (Minor v. Happersett, 1875).

The Supreme Court was determined to protect economic interests, especially when states attempted to repudiate debt obligations (Gelpcke v. Dubuque, 1864). The effect of Gelpcke was to limit the states' capacity to control public indebtedness and to inhibit cities' efforts to build roads and bridges. In the License Tax Cases (1867), the Court, by upholding a federal statute licensing and taxing lotteries, rejected state claims that the federal government improperly intruded into local affairs and condoned immorality. The Court similarly upheld federal power in Veazie Bank v. Fenno (1869), sustaining a wartime tax that had the purpose and effect of abolishing banknotes issued by state‐chartered banks as a circulating medium.

The Court at first denied the federal government's power to issue paper notes as legal tender (Hepburn v. Griswold, 1871) but reversed itself that same year in Knox v. Lee (see Legal Tender Cases). At the same time, the Court also sustained a federal wartime income tax that presented problems of intergovernmental tax immunities (Collector v. Day, 1871).

Throughout Reconstruction, the Court usually deferred to congressional determinations of policy while reasserting its coordinate constitutional status. Still, the Chase Court held ten federal statutes unconstitutional, as compared with two such decisions between 1789 and 1864. Just as Gelpcke curtailed state control over state and local finance, the Test Oath Cases, Bradwell, and Slaughterhouse obstructed the cause of racial and gender equality.

See also History of the Court: Reconstruction, Federalism, and Economic Rights.

Bibliography

Harold M. Hyman and and William M. Wiecek , Equal Justice under Law: Constitutional Development, 1835–1875 (1982).
Robert J. Kaczorowski , The Nationalization of Civil Rights: Constitutional Theory and Practice in a Racist Society, 1866–1883 (1987).

Harold M. Hyman