Reconstruction

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RECONSTRUCTION

The Framers of the Constitution did not anticipate a civil war or contemplate the constitutional problems in rebuilding the Union after such a conflict. From abraham lincoln's first proposal for restoring the Union in 1863 to the withdrawal of the last federal troops from the South in 1877, Reconstruction was at heart a series of constitutional questions involving the power of the federal government vis-à-vis the states and the relations among the various branches of the national government.

The key issue from the very beginning centered on the nature of the Union. The South claimed that as a compact of states, the Union could be dissolved by the single expedient of the sovereign states choosing to withdraw. The North saw the Union as indissoluble. As Chief Justice salmon p. chase later wrote in texas v. white (1869), "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." The northern view had prevailed by force of arms, and the Union had been preserved. But if the states had never left the Union, as Lincoln had claimed throughout the civil war, then why would a reconstruction be necessary to put them back in a status they had never left?

Lincoln approached this question in the same commonsense manner he had approached the war. The Constitution did not specifically authorize the federal government to deal with a civil war, but it was inconceivable that the Framers had not intended for the government to have all the adequate powers to preserve and defend itself. Throughout the war, Lincoln relied on the "adequacy of the Constitution" theory to justify actions that could not be grounded on a specific constitutional clause.

Common sense told him that if theoretically the states could not leave the Union, in initiating the war they had at least left their proper role in that Union, and some actions would have to be taken to make theory and reality whole again. The Ten-Percent Plan, whereby one-tenth of a state's 1860 voters would swear support of the Constitution and "reestablish" state government in return for presidential recognition, must be seen not as Lincoln's final word on the subject but as a wartime measure designed to draw the southern states back with the promise of leniency. Moreover, Lincoln wanted to retain his flexibility; if the Ten-Percent Plan worked, well and good, but if not, then he would try something else. The President vetoed the wade-davis bill not because he disagreed with its provisions but because it left him too little room for maneuver. The three state governments set up under Lincoln's plan proved failures, and there is evidence that the President and Congress were moving toward agreement on a new plan at the time of his assassination.

Where Lincoln had shown flexibility and open-mindedness in approaching the problem, his successor took a rigid and uncompromising position: the States had never left the Union, and therefore the federal government had no business telling them what they had to do in order to return to the Union. In andrew johnson's mind, Reconstruction amounted to little more than a brief period of readjustment, with oversight over this readjustment completely a presidential function. Just as Lincoln, as commander-in-chief, had the constitutional authority for directing the war, so now he, as commander-in-chief, would have similar power in tidying up the last few problems of that war. In taking this view, Johnson completely misunderstood how Lincoln had worked closely with congressional leaders to have Congress support his policies.

Over the summer of 1865 the southern states, at Johnson's direction, held conventions to revise their constitutions (primarily to abolish slavery) and to elect representatives to Congress. In the President's mind, when these representatives joined the Thirty-ninth Congress in December 1865, the Union would be whole and the readjustment process at an end. He did not believe then or later that Congress had any power to force the southern states to do anything they did not freely choose to do themselves. The former Tennessee senator, unlike many of his southern colleagues, had been a strong defender of the Union, but like them he shared a strong commitment to states ' rights.

Congress obviously did not share Johnson's view and recognized that if it seated the southern representatives, Reconstruction would be at an end before the legislators could examine the situation or frame their own plan. Moreover, they believed that the people of the North wanted assurances that the fruits of their victory—the preservation of the Union and the abolition of slavery—would be protected in the peace to follow. With congressional refusal to seat the southerners, two conflicts began, one between the national government and the former Confederate states and the other between Congress and the President, both revolving around the question of what powers the national government had over the states.

Congress passed several bills in early 1866 to assist the newly freed blacks and to create legal protections for their rights. Supporters of these measures relied on what they considered the broad mandate of the thirteenth amendment, ratified in December 1865, which included the first enforcement clause in any amendment. Some scholars have suggested that it is the Thirteenth, and not the Fourteenth, Amendment that recast relations between the states and the national government by giving Congress power over what had hitherto been an internal state matter.

When Congress discussed Reconstruction in early 1866, many Republicans believed that the Thirteenth Amendment by itself gave Congress sufficient power to carry out the broad aims of giving the former slaves full rights as citizens of the United States. Freedom, as they saw it, involved not just the formal abolition of slavery but also the eradication of any signs of inferior status. According to this view, Congress had all necessary power to enact whatever legislation it thought necessary and proper to secure these goals.

Andrew Johnson, however, claimed that the amendment did little more than formally abolish slavery, and although the evidence is strong that its framers meant more than that, the Republican leadership in Congress worried that the Supreme Court might adopt his view. One can therefore see the fourteenth amendment as an effort to clarify the original intent of the Thirteenth and as Congress's Reconstruction plan. By making its goals explicit through a constitutional amendment, Congress intended to quiet all concerns about the legitimacy of its plan.

One should also note that aside from invalidation of the Confederate debt and restrictions on some leaders of the rebellion, the Fourteenth Amendment was not punitive. Congress, as well as Johnson, wanted to see the southern states back in their proper role as quickly as possible. This is clear in the June 1866 report of the joint committee on reconstruction, which, while documenting southern intransigence and oppression of the freedom, is moderate in tone. Ratify the Fourteenth Amendment, the report implies, and welcome back. In fact, Tennessee, which had always had a large Unionist faction, promptly ratified and Congress admitted it back into the Union in 1866.

The committee report is also noteworthy for its discussion of the constitutional issues involved in Reconstruction. Aside from repudiating Johnson's view of Reconstruction as solely a presidential function, it examined the constitutional status of the former Confederate states. In talking about "forfeited rights," it struck a position halfway between those who claimed that the states had never left the Union and therefore had retained all their rights and the radical view of "state suicide," in which the states had ceased to exist as legal entities. Rather, the states had as a result of their rebellion forfeited basic political rights as members of the Union and, until restored fully to the Union, could enjoy only those rights granted to them by the Congress. The report relied on the fact that the Constitution assigned the power for creating new states to Congress, not the President; by implication the task of refixing the states in the Union also belonged to Congress.

The report is a commonsensical effort to deal with practical problems, but its theoretical basis is inconsistent. The states had forfeited all rights and existed as states only at the sufferance of Congress, yet they were being asked to exercise one of the most important political powers under the Constitution—changing the organic framework of government through amendment.

At Johnson's urging, the other southern states refused to follow Tennessee's example, and this refusal raised the question of whether ratification of the amendment required three-fourths of those states still in the Union or three-fourths of all the states—including the southern states now in a constitutional limbo. Here again one can only contrast Johnson's rigid adherence to a theoretical premise that flew in the face of the reality and Congress's efforts to reach a workable solution of a problem fraught with constitutional bombshells.

The election of 1866 ought to have made clear to Johnson that the North overwhelmingly favored the congressional Republican position, but he continued his efforts to thwart Congress. The events of 1867, with continuing tensions between President and legislature, led to a political impasse unforeseen by the Framers—a chief executive who, repudiated at the polls, refused to accept that judgment and who did his best, not to execute duly passed laws of Congress, but to thwart their implementation. There is an ongoing debate over what the Framers intended as grounds for impeachment, but a number of scholars believe that the device serves as an instrument of last resort for resolving a political deadlock that would otherwise paralyze the government. Although the Senate failed to convict by a single vote, the impeachment proceeding had the desired effect: while Johnson still refused to cooperate with Congress, he no longer attempted to obstruct its will. By then, however, the damage had been done; the intransigence of the southern states, encouraged by Johnson, led to a prolonged Reconstruction and a legacy of bitterness.

Hovering in back of much of the congressional debate in 1866 and 1867 was a concern over what the Supreme Court would say in regard to the Reconstruction statutes. By then, no one questioned the power of the Court to declare acts of Congress unconstitutional, and if the Justices should adhere to the traditional view of limiting federal interference in state affairs, then the entire congressional program might be voided. The Court's decision in ex parte milligan (1866) and in two cases striking down loyalty oaths alarmed Congress, which quickly passed a law narrowing the Court's jurisdiction in certain areas. But in the only case in which the Court directly addressed the constitutional question of Reconstruction, Texas v. White (1869), the Court confirmed the congressional view that whatever the theoretical relationship of the states to the Union, the war had at least temporarily suspended that relationship and its associated rights.

While Reconstruction was no doubt a political disaster for all concerned, constitutionally it has confirmed the approach taken initially by Lincoln and later by the Congress that in extreme situations one has to interpret the document not in a narrow theoretical light but in a commonsense reponse to real problems. The intransigence of Johnson and the South required Congress to go beyond the Thirteenth Amendment, but one can argue that at least in terms of the freedmen, a liberal reading of the Thirteenth Amendment would have been sufficient to achieve the goals of full equality before the law. The Fourteenth Amendment and fifteenth amendment, passed in response to unnecessary objections, had their greatest constitutional impact not during Reconstruction but in later years.

Melvin I. Urofsky
(1992)