Constitutional History, 1865–1877

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The great political and constitutional issue of the period 1865–1877 was the reconstruction of the Union after the civil war. Reconstruction presented several closely related issues. There were issues involving the nature of the federal system. One of these arose even before the war ended: what was the constitutional relationship to the Union of the states that had attempted to secede? Another arose after the southern states were restored to normal relations: what powers did the national government retain to protect the rights of its citizens? There was the problem of defining the constitutional status of black Americans—a problem that finally forced Americans to define American citizenship and the rights incident to it. Also, because the President and Congress disagreed on these issues, Reconstruction brought about a crisis in legislative-executive relations that culminated in the only impeachment of an American President. Finally, the Reconstruction controversy had a powerful effect upon Americans' conception of the proper role of government, laying the groundwork for the development of laissez-faire constitutionalism.

These issues would be adjusted in the context of the established party system. During the war, the Republican party worked diligently and fairly successfully to broaden its support. Renaming their organization the Union party, Republican leaders accepted as colleagues men who had been influential Democrats until the outbreak of war. In 1864 the party nominated Tennessee's Democratic former governor and senator, andrew johnson, to the vice-presidency. Despite this, the Union party, which would revive the name Republican after the war, was the heir to the governmental activism of the old Federalist and Whig parties. Likewise Republicans inherited nationalist theories of the federal system. (See union, theories of the.), The war confirmed and extended their distrust of states ' rights doctrines; yet many Republicans would resist going too far in the direction of "consolidation" of the Union at the expense of traditional areas of state jurisdiction. On the other hand, the majority of Democrats had remained loyal to their party and its heritage of states' rights and small government. Naturally, the Reconstruction issue, which involved both questions, found the two parties ranged against one another.

Northerners faced a paradox when they considered the status of the Confederate states at war's end. They had denied that a state could leave the Union, but few wanted the same governments that had attempted secession to return as if nothing had happened. Only so-called Peace Democrats argued that the Union should be restored through negotiations between the Confederate state governments and the national government. Somehow, Republicans and War Democrats insisted, the national government must have power to secure some changes in the South and in the federal system before final restoration. As the war progressed, and especially in 1865 and 1866, when they were forced to grapple with the problem, Republicans propounded a variety of constitutional justifications for such power. Unlike Democrats, who insisted that state government had existed before the Union and independent of it, Republicans insisted that states could exist only in the Union and by virtue of their connection with it. Thus, by trying to secede, the southern states had committed state suicide, in the graphic language of Senator charles sumner; or, as other Republicans put it, they had "forfeited their rights." Given this view, there were several ways to justify national power over Southerners. Many Republicans argued that if Southerners now lacked state governments, Congress must restore them under the clause of the Constitution requiring the national government to guarantee a republican form of government to each state. Moreover, in the 1849 case of luther v. borden the Supreme Court, citing this clause, had seemed to concede to the "political branches" of the government the power to recognize whether a state government was legitimate in case of doubt. The Court had held that the admission of state representatives to Congress was conclusive. With state governments defunct, Republicans argued, the Court's holding meant that the political branches of the national government would have final say about what government would be recognized as restored to the Union and when that recognition would take place. Implicit in this power was the authority to determine what sort of government would be acceptable.

But when some Republicans insisted that the guarantee clause entitled the national government to require changes it believed necessary for states to be considered republican, most of their colleagues rebelled. Such an interpretation would give the national government power to modify "unrepublican" political and civil laws in states that had never left the Union.

Other Republicans found a safer source of power over states that had forfeited their rights: the national government had recovered control over the territory and citizens of the South through exercise of its war powers, which had overridded the peacetime provision of the Constitution that guaranteed citizens' and states' rights. The government could continue to hold Southerners in this "grasp of war" until they agreed to meet the government's conditions for the restoration of peace. On this theory, national power would be temporary, providing no precedent for intruding in states that had not been in rebellion.

Finally, other Republicans—those who wanted the most radical changes in southern society—argued that, having broken away from national authority de facto, the southern states were conquered provinces no different from any other newly acquired territory. Thus Southerners were subject to the direct control of the national government, which ought to provide ordinary territorial governments through which they could govern themselves under the revisory power of Congress. In this way the national government would retain authority to legislate directly for the South until new states were created there—establishing a public school system, for example, or confiscating the great landed estates and distributing them among the people as small farms. But this theory also seemed too radical for most Northerners, and most Republicans endorsed the more limited "grasp-of-war" doctrine.

Congress was adjourned in April and May 1865, as Lincoln was assassinated and the war ended. Lincoln's successor, the former Democrat Johnson, accepted the key elements of the wadedavis bill developed during the war, but he followed Lincoln's policy of carrying it out under presidential authority, rather than calling Congress back into session to enact Reconstruction legislation. Johnson called for white, male voters in each southern state to elect a state constitutional convention as soon as fifty percent of them had taken a loyalty oath that would entitle them to amnesty. Thus blacks would have to depend on governments elected by whites for protection of life and property. The conventions were required to pronounce their states' secession ordinances null and void, repudiate debts incurred by their Confederate state governments, and abolish slavery. Finally, the southern states would have to ratify the proposed thirteenth amendment, which abolished slavery throughout the land. Then the conventions could organize elections to ratify the new constitutions, elect state officials, and elect congressmen. By December 1865, as Congress reconvened, this process had been completed in most of the southern states and would soon be completed in the remainder.

At first Johnson was vague about his constitutional theory of Reconstruction, but as congressional opposition developed his supporters articulated a position that left little power to Congress. Secession had merely "suspended" the operation of legal governments in the South, they insisted. As commander-in-chief of the armed forces, the President had the duty under the government's war powers to reanimate state governments. War powers were inherently presidential, Johnson insisted. He had exercised them in such a way as to preserve the traditional federal system. Congress could do no more than exercise its constitutional power to "judge of the elections, returns and qualifications of its own members" by deciding whether individual congressmen-elect were disqualified by their roles in the war; it could not deny representation to whole states. Gaining the support of northern Democrats for this states'-rights-oriented policy, Johnson set the stage for a bitter struggle over the relative powers of the branches of the national government.

A majority of congressmen might have acquiesced in the President's position had they been confident that loyalists would control the southern state governments or that the rights of the newly freed slaves would be respected there. However, it soon became apparent that the states were controlled by former rebels and that the rights of the freedmen would be severely circumscribed. Compounding the problem, the ex-Confederate-dominated South would increase its congressional representation now that slavery was abolished; the constitutional provision counting only three-fifths of the slave population would no longer apply. All this persuaded congressional Republicans to refuse immediate admission of southern state representatives to Congress and to seek a compromise with the President.

There were two thrusts to the congressional policy: protection of freedmen's rights and a new system of apportionment of representation in Congress. Most congressional leaders believed that the Thirteenth Amendment automatically conferred citizenship upon the freedmen when it abolished slavery. Moreover, the amendment's second section authorized Congress to pass legislation appropriate to enforce abolition. Republicans acted upon this understanding by passing a new freedmen ' sbureau bill, augmenting one passed during the war, and proposing the bill that became the civil rights act of 1866. The first, a temporary measure justified under the war powers, authorized an Army bureau to supervise the transition from slave to free labor, protecting the rights and interests of the freedmen in the process. The second was designed to secure permanent protection for the freedmen in their basic rights. Few Republicans thought that Americans would accept so drastic a change in the federal system as to give Congress instead of the states the job of protecting people in their ordinary rights. Therefore they adopted the idea of leaving that job to the states but requiring them to treat all groups equally. At the same time, Republicans intended to require equality only in the protection of basic rights of citizenship. This goal forced them to define just what those rights were. So the Civil Rights Act declared all persons born in the United States, except Indians who did not pay taxes, to be citizens of the United States; it granted all citizens, regardless of race, the same basic rights as white citizens. What were these basic rights of citizenship? "To make and enforce contracts; to sue, be parties, and give evidence; to inherit, purchase, lease, sell, hold, and convey real and personal property; and to full and equal benefit of all laws and proceedings for the security of persons and property" and to "be subject to like punishment, pains, and penalties." To secure these rights without centralizing power of ordinary legislation in Washington, the bill permitted citizens to remove legal cases from state to federal court jurisdiction in any state that did not end discrimination. (See civil rights removal.) The idea was to force states to abolish racial discrimination in their own laws in order to preserve their jurisdictions. As its author explained, the act would "have no operation in any State where the laws are equal, where all persons have the same civil rights without regard to color or race."

At the same time Republicans prepared a fourteenth amendment to define citizenship and its rights; to change the way seats in Congress were apportioned, so as to reflect the number of voters rather than gross population; to disqualify leading Confederates from holding political office; and to guarantee payment of the United States debt while repudiating the Confederate debt. Congress was to have power to enforce this amendment, too, by "appropriate" legislation.

Republicans expected Johnson to endorse these measures, which after all did not attempt to replace the governments he had instituted in the South, and they expected Southerners to signify their acceptance of these "terms of peace" by ratifying the new amendment. However, Johnson insisted that the Republican program would revolutionize the federal system. He vetoed the legislation and urged Southerners to reject the proposed amendment. At the same time he attacked the Republicans bitterly. Republicans responded by passing the Civil Rights Act over Johnson's veto, enacting the new Freedman's Bureau Act, and sending the fourteenth amendment to the states for ratification. To the voters, they stressed the moderation of their proposals, and Johnson's supporters were badly beaten in the congressional elections of 1866. Nonetheless, Southerners followed Johnson's advice and refused to ratify the amendment.

This refusal angered and frightened Republican congressmen. If the conflict drifted into stalemate, northern voters might tire of it and blame the Republicans for not completing restoration. Outraged at southern recalcitrance and Johnson's "betrayal," the Republicans passed new Reconstruction laws over his veto early in 1867. Designating Johnson's southern governments as temporary only, the Republicans instructed Southerners to begin the process anew. This time many leading Confederates would be disfranchised while the freedmen were permitted to vote. New state conventions would have to be elected to write new constitutions banning racial discrimination in civil and political rights. The voters would have to ratify these constitutions, and then newly elected state officials would have to ratify the Fourteenth Amendment. In 1869 the Republican Congress proposed to the states the fifteenth amendment, banning racial discrimination in voting; southern states that had not yet finished the process of being readmitted would be required to ratify this amendment, too. In some ways the new program was a relief to Republicans. They expected that once southern blacks could vote, their state governments would have to provide them with the protection of the laws, thus rendering unnecessary the exercise of national power and preserving the old balance of the federal system.

Until the southern states complied with the new Reconstruction laws, they were to be under the control of the Army, subject to martial law and, if necessary, military courts. Southerners insisted that this whole program was unconstitutional, and they tried to persuade the Supreme Court to declare it so. In 1867 and 1868 representatives of Johnson's state governments asked the Supreme Court to enjoin Johnson and his secretary of war, respectively, from enforcing the military reconstruction acts. They hoped for success, because the majority of the Justices were suspected of opposing the Republican program. In earlier cases, including ex parte milligan (1866), a narrow majority had held that military courts could not operate upon civilians where civil courts were functioning, and in the test oath cases the Court had ruled unconstitutional laws requiring persons to swear oaths of past loyalty in order to follow certain professions. However, even Johnson would not sustain an effort to secure Court intervention in so plainly a political issue, and the Court dismissed both suits. (See mississippi v. johnson.)

Southerners tried again in ex parte mccardle (1869), where a Southerner convicted of murder in a military court asked for a write of habeas corpus, citing the Supreme Court's Milligan decision. At least some Reconstruction laws might be jeopardized if the Court endorsed this argument, and Republicans responded by repealing the law under which McCardle had brought his suit. The Court grudgingly acquiesced in the repeal but virtually invited a new application for the writ under another law.

These developments produced ambivalent feelings about the courts among Republicans. Before the war the judiciary had tended to sustain laws protecting slavery and discrimination against black Americans. During the war Chief Justice roger b. taney had seemed to obstruct the military effort, and the Court's course since the war had hardly been reassuring. Fearing judicial interference, several leading Republicans proposed narrowing the Court's jurisdiction and requiring a two-thirds majority of Justices to rule a congressional law unconstitutional, or denying that power altogether. On the other hand, the judiciary was the only national institution besides the military capable of enforcing the new laws protecting the rights of American citizens. Not only did Congress refrain from passing the court-limitation bills but it also expanded judicial authority by making the national judiciary the forum in which citizens and even businesses were to secure justice if their rights were denied in the states. Indeed, even as Republicans worried whether the Court would impair Reconstruction, in their roles as circuit court judges the Justices were upholding the power of the national government to protect rights under the Thirteenth and Fourteenth Amendments. Altogether, the Reconstruction era witnessed a great expansion of the jurisdiction and activity of the federal courts.

While the southern attack on the Reconstruction laws failed in the Supreme Court, Johnson was able to use against the laws the fact that they employed the military in their enforcement. As commander-in-chief of the armed forces, Johnson sought to limit the authority of military commanders and to give command of occupying forces to officers sympathetic to his position. When Secretary of War edwin m. stanton resisted these efforts, Johnson suspended him from office and appointed the popular General ulysses s. grant in his place. By late 1867 Johnson's obstruction was so successful that Reconstruction was grinding to a halt, with white Southerners ready to prevent ratification of their new, egalitarian constitutions.

Many Republicans denied that the President had the constitutional right to obstruct legislation in this way, and they urged the House of Representatives to impeach him. However, most Republicans were frightened of taking so radical a step, and many insisted that impeachment lay only for indictable crimes. Despite his obstructionism, Johnson had not clearly broken any law, and they would not support impeachment until he did. Therefore in December 1867 the first impeachment resolution failed.

However, in February 1868 Johnson did finally seem to break a law. As noted, Johnson had earlier suspended Secretary of War Stanton. He had done this while the Senate was adjourned, conforming to the tenure of office act, passed in 1867, which made all removals of government officers temporary until the Senate confirmed a successor, or, in certain circumstances, voted to accept the President's reasons for removal. In Stanton's case, the Senate in 1867 refused to concur in the removal, and Stanton returned to office. Now Johnson defied the Senate and the law, ordering Stanton's permanent removal. The House impeached him immediately, and from March through May the Senate established rules of procedure, heard arguments and testimony, and deliberated.

Although many questions were raised during Johnson's trial in the Senate, the decision finally turned for most senators on whether they believed Stanton was in reality covered by the Tenure of Office Act. Despite Johnson's initial compliance with the act, his lawyers persuaded just enough Republican senators that the act did not cover Stanton, and Johnson was acquitted. But the price for acquittal was Johnson's promise to end his obstruction of the Reconstruction laws. With that interference ended, most southern states adopted new state constitutions, and in nearly all those states Republicans took control of the governments.

The new southern constitutions and Republican governments were among the most progressive in the nation. Elected mainly by black voters, southern Republican leaders thought they could secure enough white support to guarantee continued victory by using government power to promote prosperity and provide services. Thus they emulated northern Republican policies, using state taxes and credit to subsidize railroads and canals, to develop natural resources, and to control flooding along the Mississippi River. They created the first centralized state public school systems and opened state hospitals and asylums. At the same time southern Republicans were committed to improving the conditions of former slaves, both on principle and to keep the support of their largest constituency. They passed laws to provide them with the same state services that whites received, put blacks in important positions, banned discrimination in many businesses, shaped labor laws to protect workers' interests, and appointed local judges who would be sympathetic to blacks in disputes with whites.

All these activities required the states to spend and borrow far more money than they had before the war. Because it was primarily whites who owned enough property to pay taxes, the Republican policies redistributed wealth, something not acceptable to nineteenth-century Americans. Bitterly, white Southerners charged that "ignorant," "brutal" voters were being duped by venal politicians with promises of "class legislation." Southern whites denied that such governments were really democratic. Unable to defeat Republicans at the polls in most states, they turned to violence and fraud. From 1868 through 1872, midnight riders, known by such names as the Ku Klux Klan, terrorized local Republican leaders. After 1872 the violence became more organized and more closely linked to anti-Republican political organizations.

A few southern Republican governors were at first able to suppress the violence. But by 1870 they were appealing to the national government for help, thus causing serious problems for national Republican leaders. Republicans had hoped that enfranchising the freedmen would protect them without a massive expansion of national power. Moreover, everyone believed that legislation must be based on the Fourteenth and Fifteenth Amendments, ignoring the earlier view that the Thirteenth Amendment gave power to protect citizens' basic rights. But the language of the two later amendments only protected rights against state action, and Republicans had a difficult time justifying laws protecting blacks and white Republicans from attacks by private individuals. Nonetheless, in 1871 Republicans passed such laws and also authorized President Grant to take drastic action to crush violence, including suspension of the writ of habeas corpus. They insisted that the Fourteenth Amendment required states to protect their residents; failure to do so would amount to state denial of equal protection.

At first this response seemed successful, and violence abated. However, it soon flared anew. In many southern states Republicans claimed that Democratic violence and intimidation should nullify apparent Democratic majorities in elections, and they refused to count Democratic votes from areas where violence was most intense. In return Democrats organized armed militia to press their claims. In state after state Republicans had to appeal for national troops to protect them against such opponents. Where it was difficult to afford protection, the Democratic militias—often called "White Leagues"—drove Republican officials from office.

It became ever more difficult for national Republicans to respond. More and more Northerners feared that continued national intervention in the South was undermining the federal system. At the same time the Supreme Court manifested its concern to preserve a balance between state and national authority. In Texas v. White (1869) the Justices emphasized the importance of states in the Union, and in Collector v. Day (1871) they seemed to endorse the doctrine of dual federalism, by denying the national government's power to tax the incomes of officers of the "sovereign" states. In the slaughterhouse cases (1873) the Court, in an implicitly dual federalist opinion, ruled that national and state citizenships were distinct. The Fourteenth Amendment protected only a limited number of rights inherent in national citizenship; those rights usually identified as basic remained the sole province of the states. This decision severely curtailed national power to protect black Southerners and southern Republicans from violence. In united states v. cruikshank (1876) the Court held invalid indictments against white conspirators who had massacred blacks, in part on the grounds that the Fourteenth Amendment was aimed only at state action and could not justify prosecution of private individuals.

At the same time a growing number of Northerners were coming to share Southerners' concern about "class legislation." To these Northerners, calls for a protective tariff, for artificial inflation of the currency, for repudiation of state-guaranteed railroad bonds, for regulation of railroad rates, and for government imposition of an eight-hour work day all indicated a growing clamor for "class legislation" in the North. City political organizations, which taxed urban property holders to provide services to the less wealthy, seemed to be engaging in the same kind of "plunder" that southern whites alleged against their Republican governments. Many Northerners began to argue that the state and national constitutions required judges to overturn class legislation. They had some initial successes. The Supreme Court ruled part of the Legal Tender Act unconstitutional, only to overrule itself a year later (see legal tender cases), and state courts ruled that business and railroad promotion laws exceeded legislative power. However, the courts generally declined the invitation to write the doctrine of "laissez faire" into the Constitution. The majority in the Slaughterhouse Cases rejected the argument, and the Court sustained broad state regulatory power over businesses affected with a public interest—railroads, grain warehouses, and others that were left undefined. (See granger cases.)

Nonetheless, the conviction was growing that the sort of wealth-redistributing policies followed by southern Republicans was fundamentally wrong and so was fear that such ideas might spread north. More and more Northerners agreed with southern whites that southern proponents of such policies were "carpetbaggers" and "scalawags." By 1875 President Grant was refusing to help his beleaguered political allies; all but three southern states had returned to Democratic control, often through force and intimidation; and white Southerners were planning similarly violent campaigns to "redeem" the last three in 1876. Their effort to do so led to one of the greatest political and constitutional crises in American history.

In the presidential election of 1876 the violence and fraud endemic in the South threatened to engulf the nation. In the three remaining Republican states in the South—South Carolina, Louisiana, and Florida—Democrats engaged in campaigns of violence and intimidation. Republican officials threw out votes from districts they claimed Democrats had carried by force. Democrats once again charged fraud and armed to confront Republicans; southern Republicans once again appealed to the national government for protection. However, this time the outcome of the presidential election itself turned upon who had carried these three states. Without them, Democrat Samuel J. Tilden was one electoral vote short of victory. Republican rutherford b. hayes needed the electoral votes of all three to win.

As the time drew near to count the electoral vote and declare a winner, two sets of electoral votes were sent to Congress from each of the contested states—the Republican votes certified by appropriate state agencies, and Democratic competitors. The Constitution requires electoral votes to be counted by the president of the Senate (normally the vice-president of the United States) in the presence of both houses of Congress. Republicans insisted that, absent a specific congressional resolution governing the subject, the Republican president pro tempore of the Senate would have the power to decide which set of votes were the correct ones to count (the vice-president having died in office). Controlling the Senate, Republicans prepared to block any contrary resolution that might come from the Democratic House. Democrats, on the other hand, insisted that if the two houses of Congress could not agree upon which set of votes was legitimate, neither could be counted. Then no candidate would have a majority, and according to the Constitution the House would name the winner.

With no clear precedent, and with the Supreme Court not yet accepted as the usual arbiter of such constitutional disputes, it seemed that the conflict might be resolved by force. Republican President Grant controlled the Army; if he recognized a President counted in by the Republicans, a competitor named by the House would have a hard time pressing his claim. To counter this Republican program, Democrats threatened forcible resistance.

As Americans demanded a peaceful end to the crisis, the two sides were forced to compromise. Congress passed a resolution turning all disputed electoral votes over to an Electoral Commission of ten congressmen and five Supreme Court Justices for decision. The commission decision would stand in each case unless both houses voted to disagree to it—an early example of a legislative veto.

To the Democrats' dismay, the three Republican Supreme Court Justices joined the five Republican congressmen on the commission to decide every disputed vote in favor of the Republican candidate. In each case the majority accepted the votes certified by the agency authorized by state law. Republicans insisted the commission had no power "to go behind" these returns.

Furious, Democrats charged that this was a partisan decision. Many of them urged Democratic congressmen to prevent the completion of the count by filibustering, saying that the House could name the President if the count were not completed by the constitutional deadline of March 3. But most Democrats felt that Americans would not support such a radical course after Democrats had agreed to the compromise. To strengthen these moderates, Hayes promised not to help southern Republicans against rival claimants for state offices. As a result Hayes was declared President just within the deadline. When he honored his commitment to the Democrats, the last southern Republican governments collapsed, even though the Republicans had claimed state victories based on the same election returns that elected Hayes. (See compromise of 1877.)

The collapse of Reconstruction was related directly to the development of constitutional commitments that would dominate the last quarter of the nineteenth century. It marked a renewal of a state-centered federalism that would characterize succeeding years. Furthermore, it was a direct result of the growing fear of "class legislation" that would lead to the acceptance of "laissez-faire constitutionalism" in the 1890s.

Michael Les Benedict


Benedict, Michael Les 1975 A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869. New York: W. W. Norton.

Fairman, Charles 1971 Reconstruction and Reunion, 1864–88—Part One, Volume 6 of The History of the Supreme Court of the United States. New York: Macmillan.

Gillette, William 1979 Retreat from Reconstruction, 1869–1879. Baton Rouge: Louisiana State University Press.

Hyman, Harold M. 1973 A More Perfect Union: The Impact of the Civil War and Reconstruction upon the Constitution. New York: Knopf.

Mc Kitrick, Eric L. 1960 Andrew Johnson and Reconstruction. Chicago: University of Chicago Press.

Stampp, Kenneth M. 1965 The Era of Reconstruction, 1865–1877. New York: Knopf.

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Constitutional History, 1865–1877

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Constitutional History, 1865–1877