Footnote 4 of Carolene Products and the "counter-majoritarian difficulty."
In his last public address, April 11, 1865, President Abraham Lincoln defined the problem of Reconstruction as how to end the war, re-inaugurate the national authority, and get the seceded states back into “their proper practical relation with the Union.” No provision in the Constitution explained how this should be done. There was no government to make a treaty with as in a war between independent nations. Lincoln observed: “No one man can give up the rebellion for any other man. We must simply begin with, and mould from, disorganized and discordant elements.”
In Statesmanship and Reconstruction: Moderate Versus Radical Republicans on Restoring the Union after the Civil War, Philip B. Lyons considers politics in the wake of that great conflict from the moral-philosophic standpoint of statesmanship. Dissenting from standard historical accounts that sympathize with Radical Republicans, Lyons describes a middle-of-the-road Reconstruction policy on the basis of which Southern whites, “turning against their race prejudice,” might have been persuaded to enforce equal rights for blacks.
The South’s decision to secede by armed force confirmed the judgment of Northern opinion that the notion of a slave-holding republic was not only an abomination but also a violation of the clause in the Constitution that guarantees “a republican form of government” to every state in the Union. In the view of the Republican Party, therefore, the object of Reconstruction policy was to establish loyal republican (small “r”) state governments to protect the civil rights and liberties of the freed people. Enlightened statesmanship required the temporary suspension of majority rule in the hope of identifying a minority of white citizens who could be trusted with power and had a personal interest in regaining a political voice in the postwar South.
The greatest obstacle to genuine republican Reconstruction was “the prevailing vicious race prejudice.” Lyons says that while all Republicans recognized this fact, opinions differed over how to persuade Southern whites to accept the ideals of consent and equality in the Declaration of Independence. Moderate Republicans evinced a spirit of statesmanlike magnanimity. Believing racial equality to be a goal to be attained gradually, they appealed to white Southerners’ sense of self-interest as a foil to discrimination on account of race.
The key strategic move in Lyons’ conception of moderate Republican statesmanship was a “bargain” by which a critical mass of Southern whites would be permitted to participate in government in exchange for a commitment to legal protection of basic civil rights for black citizens. The Radical Republican faction, however, claimed that the United States held the ex-Confederate states in “the grasp of war,” a source of legitimate authority that justified categorical denial of the interests and opinions of white Southerners. From the Radical standpoint what the South needed, and rightly deserved, was the imposition by military force of a revolutionary policy of civil rights equality, free labor, and land redistribution.
Lyons says neither faction of the Republican party “captured the whole of a statesmanlike solution.” Prudence required “a judicious combination of force and consent.” Although no fixed rule could be applied to settle the matter, Lyons believes the essential requirement for political success was that there “be some element of consent in a reconstruction policy, some combination of the likely reaction of native whites in devising a feasible, practical approach.” Unfortunately, however, throughout the Reconstruction era the criterion of consent was never satisfactorily fulfilled. Force and unreasoning factionalism prevailed at critical moments when statesmanlike magnanimity was most sorely needed.
The most that can be said is that things might have been different had Lincoln—the preeminent statesman in American history—not been assassinated. In occupied Louisiana Lincoln organized a civil government based on a “tangible nucleus” of Union loyalists acting under military authority subject to presidential supervision. Even Lincoln, however, was unable to prevent radical Republicans from denying senators from reconstructed Louisiana admission to Congress in March 1865.
A few days later, Lincoln was dead and Vice President Andrew Johnson, an egregiously miscast Tennessee Unionist and racist Democrat, assumed executive authority. Johnson issued proclamations appointing provisional governors in seven former Confederate states directing the people to alter or amend their constitutions under the U.S. constitutional guarantee of a republican form of government. Johnson further issued an amnesty proclamation granting, with exceptions, pardon to all persons who directly or indirectly participated in the rebellion, requiring them to swear loyalty to the Constitution and Union. Pardoned white Southerners were under obligation to abide by all laws and proclamations referring to the emancipation of slaves, including the Thirteenth Amendment, then in the process of being ratified, which banned slavery.
The central motif in Lyons’s account is the failure of moderate Republicans to instill into Reconstruction policy the spirit of statesmanlike magnanimity. This failing in part had its source in modern democratic partisanship, which challenges hierarchical structures of authority in which the duty and responsibility of the statesman are accorded greater recognition and honor. Lyons attributes the violence, hatred, and travail of Reconstruction to the “perverse,” “unnatural,” and irrational affinity that emerged between radical Republicans and unrepentant racist Democrats at critical policymaking moments.
With due appreciation, Lyons evaluates accounts of Reconstruction written during the 20th century civil rights movement that are sympathetic to radical Republicans and that “make a strong case for military coercion, federal intervention and revolution.” Lyons in contrast takes “the point of view of the leaders at the time who were either engaged in factional struggles with the Republican party or trying to rise above them.” For Lyons the controlling question is: “What guidance do our founding principles indicate for dealing with rebels?” In his view moderate Republicans had the right answer.
The Thirteenth Amendment was ratified in December 1865. Congress refused to seat representatives elected under the Johnson state governments and passed Freedman’s Bureau and civil rights laws that were enacted over presidential vetoes. Under the leadership of Representative John Bingham (R-OH), moderate Republicans designed the Fourteenth Amendment as a comprehensive reconstruction plan intended to embody statesmanlike magnanimity. The amendment defined citizenship; prohibited states from denying fundamental rights of life, liberty, and property; revised the rule of representation in Congress; and excluded from federal or state office any person who, having sworn to support the U.S. Constitution, engaged in rebellion.
Given the opportunity to resume their place in the Union under the “bargain” offered in the Fourteenth Amendment, 10 former Confederate states unhesitatingly rejected it. In the playing out of the moral-philosophic and geopolitical-cultural forces that ruptured the Union, the time for affirming political right and justice by the application of military force had arrived. With the rejection of the Fourteenth Amendment, it fell to radical Republicans to bear the burden of statesmanlike responsibility—as they understood it—against the ideological racial supremacism of President Johnson, the white political class, and the mass of Southern Democrats.
Radical Republican Congressman Samuel Shellabarger (R-OH), countering John Bingham’s moderate Republican argument from statesmanlike magnanimity embodied in the Fourteenth Amendment, asserted that if the people disavowed their moral obligation to the U.S. Constitution the federal government was free to take any steps, short of expulsion, necessary to guarantee loyal republican constitutional government in the former Confederacy. Rebels should be marked with a “stamp of detestation” and treated outside the law as aliens. Lyons says that while this argument “may have been theoretically sound,” it ignored the statesmanship necessary to restore ex-rebels to the Union. He acknowledges, however, that moderate Republicans made the mistake of not addressing “the danger of still greater lawlessness reflected in the rejection of the Fourteenth Amendment.”
To stop President Johnson from controlling Reconstruction, the Republican majority in Congress pressed for, and won, passage of the Military Reconstruction Act of 1867. The Act divided 10 Southern states into five districts under military commanders authorized to employ military tribunals to protect the person and the property of all citizens. Most important, the Act declared existing state governments in the South to be “provisional only and subject to the paramount authority of the United States to abolish, modify, control, or supersede them.” Upon the forming of new constitutions and ratification of the Fourteenth Amendment, reconstructed states would be readmitted to Congress.
To maintain control of Reconstruction policy, Republicans impeached President Johnson for obstructing enforcement of the Military Reconstruction Act and the Tenure of Office Act, designed to restrict the executive removal power. The strategy failed when the Senate acquitted Johnson. Political momentum shifted decisively to the Radical Republicans as calculations of partisan factional advantage trumped magnanimous statesmanship.
During debate on the Military Reconstruction Act, Representative Bingham proposed equal and impartial suffrage intended to give white Southerners the opportunity, with the aid of black votes, to take control of their government and restore “truly republican government.” Radicals disagreed. Determined to deny white Southerners “the road of escape” that moderates believed essential for a successful Reconstruction, they deserted their Republican colleagues. Radical Republicans and Democrats “perversely” formed “an unnatural combination” that, in Lyons’ view, impeded the pursuit of “magnanimous statesmanship.”
The decisive step was rejection of a rule of “equal and impartial” suffrage supported by moderate Republicans and adoption of the Radical Republican demand for a rule of universal suffrage for male citizens of “whatever race, color, or previous condition of servitude.” Although ratification of the moderate Fourteenth Amendment was required for readmission to the Union, moderate Republicans were forced to accept the radical demand for inclusion of black voters and substantial disfranchisement of whites. This opened the door to what later would be denominated Black Reconstruction.
The choice of a president in 1868 was a critical election in both constitutional and partisan terms. General Ulysses S. Grant, deeply involved in the impeachment of Johnson, declared himself a Republican and was nominated as the party’s presidential candidate unanimously on the first ballot. The GOP platform announced the restoration of peace, supported civil and political rights, and commended “the spirit of magnanimity and forgiveness” with which former rebels “are received back into the community of the loyal people.”
Grant’s election victory made him the premier political strategist and chief administrative officer over Reconstruction policy. The military hero was not, however, well qualified to play the role of statesman in which he was cast. According to Lyons, President Grant was not eager to obtain the “political intelligence” essential to making “the right decisions to end factional fighting.” Acting under new state constitutions dictated by the military reconstruction statutes, Republican officials in Lyons’ view “were not in a condition to make principled outreach for white support.” This was the effect of universal suffrage laws that precluded the limited black suffrage that moderate Republicans deemed essential and that would have been possible under an equal and impartial standard.
In a state-by-state survey of the politics of Reconstruction governments, Lyons claims that along with the egregious instances of incompetence, corruption, and scandal related in standard historical accounts, there were “Reconstruction statesmen at work.” The Governors of Florida and Virginia, “as if by political instinct,” found a political middle ground that accommodated the interests of local moderate whites to the requirement of Black suffrage and civil rights protection.
If a ray of hope was discernible in the political instincts of a few Reconstruction governors, the fury of racist ideology—more deeply grounded than superficial race prejudice—overwhelmingly suppressed the enforcement of Black civil rights. The Ku Klux Klan and other white supremacy terrorist groups were formed to “redeem” the South from subversive equal rights principles. In reaction to anti-Black terrorism, Congress passed civil rights laws in 1870 and 1871 protecting Blacks against state discrimination and acts of individual private violence. Lyons says the application of force by act of Congress was now “the alternative to a statesmanlike shaping of the political forces within the states to protect the rights of all.”
In his second inaugural address, President Grant acknowledged that although the effect of the war was to free the slave and make him a citizen, “he is not possessed of the civil rights which citizenship should carry with it.” Declaring this deprivation wrong, Grant said that as far as executive influence permitted, he would try to correct it. Reflecting Northern public opinion, he observed that:
Social equality is not a subject to be legislated upon, nor shall I ask that anything be done to advance the social status of the colored man, except to give him a fair chance to develop what is good in him, give him access to the schools, and when he travels let him feel assured that his conduct will regulate the treatment and fare he will receive.
Grant further noted that “The States lately at war with the General Government are now happily rehabilitated, and no executive control is exercised in any one of them that would not be exercised in any other State under like circumstances.”
The end of Reconstruction was immanent in the tensions and contradictions of party factionalism that prolonged disunion until public opinion grew weary and demanded an end to the fighting. The disputed presidential election of 1876, settled by an electoral commission appointed by Congress, was the occasion for a compromise that led to the withdrawal of federal armed forces from the former Confederate states.
If the criterion for a successful Reconstruction is Lyons’ standard of progress in “counteracting the opinion that blacks were inferior,” it is difficult to see how that standard could ever have been met. Asserting that public sentiment was “diseased,” Lyons says there is “no natural course of recovery from a moral disease, such as virulent race prejudice.” The “cure for such a malady is mental, a change of belief.”
In the American system of factionally driven, two-party, winner-take-all democratic politics, Lyons’ appeal to statesmanlike magnanimity may seem like daydreaming. Race prejudice is something that can be overcome. In contrast, deeply rooted racist ideology and prepossession are ontologically different. If W.E.B. DuBois was correct in stating that “the problem of the colorline was the problem of the twentieth century,” the manifest of racist ideology includes an endless variety of distinctions and identities that can persist into an indeterminate future.
Slavery was the great moral question of the 19th century. The abolition of slavery resulting from the Civil War marked a shift in moral beliefs consistent with republican principles. In a sense, it is true that the North won the war and the South won the peace. This was because public opinion determined that the abolition of slavery was a moral-political reform that justified war for the Constitution and the Union. This was accomplishment enough for one generation of Americans. If the federal government had poured armies of occupation into the South indefinitely, as one military strategist has suggested, the neo-Confederate spirit might have been expunged. No less than the wish that Lincoln had lived to settle the Reconstruction problem, such speculation makes for imaginary if consoling counterfeit history.
With quiet confidence, Lyons writes:
The history of civil rights in the twentieth century shows how important the fixed star of our ideals in the Declaration of Independence and in the Civil War amendments is in nurturing such a change in belief. [The] greatest accomplishment of Reconstruction was the constitutional framework within which enlightened legislators, judges, and bureaucrats could grind away at racist violence and discrimination.
When public opinion shifted to support a new birth of freedom in the 1960s, “there was a role for civil rights statesmanship—shaping a policy that forged a middle ground between the advocates of diversity and those in favor of a color-blind society.” As in the era of the Civil War and Reconstruction, America’s republican identity in the 21st century continues to be the object of moral-philosophic contestation.