Punish Treason, Protect Loyalty—and Advance the Declaration of Independence Project!

Guest Blogger

For the Balkinization Symposium on Mark A. Graber, Punish Treason, Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (University of Kansas Press, 2023).

Rogers M. Smith

Punish Treason, Reward Loyalty is the first of a multi-volume series that Mark A. Graber is writing on the Reconstruction amendments. That series will be a monumental scholarly contribution, both enduring and timely.

When first published, Punish Treason, Reward Loyalty was all too timely. It abundantly vindicates Graber’s longstanding argument that it is usually a mistake to read constitutions as quasi-philosophic statements of principles chiefly designed to be interpreted by judges, other officials, and citizens seeking to act in accordance with those principles. Constitutions are, as Graber aptly puts it, political efforts to structure power to “privilege coalitions with particular interests and values” (p. xxxi). Central to the 14th Amendment, this book persuasively argues, was an effort to restructure power in the American constitutional system so that those who had been loyal to the Union, and the interests and values they saw it as serving, would hold governing power in the United States in perpetuity--not the treasonous rebels of the Confederacy.

The timeliness of this argument came from the grim reality that the U.S. was, as it is now and will be for some years to come, engaged in political struggles over the fate of people who gave “aid and comfort” to an insurrection against the national government. Will they be able to regain public offices and restructure power so that they may hold it in perpetuity--subjecting to "termination" any parts of the Constitution that stand in their way? Or will courts find at least some January 6th insurrectionists guilty of crimes and/or banned from public office because, among other offenses, they have violated Sec. 3 of the 14th Amendment? Graber’s research contributed to the 2022 decision of a New Mexico court to bar a candidate from a county office due to his participation in the January 6th insurrection. Many states then began moving to prevent the insurrection-inciting, chronically criminal former president Donald Trump from appearing on their ballots. In March 2024, a Supreme Court otherwise reluctant to act on the legal issues involving Trump quickly and unanimously ruled that while Sec. 3 authorizes states to remove insurrectionists from local and state ballots, they have no power to act against candidates for national offices. Despite that result, Graber along with only a few others made a tremendous civic contribution through scholarship that put the very legitimate issue of ballot eligibility before the courts and the country.

Along with that monumental contribution, the methodological and substantive virtues of Graber’s book could be expounded at length. Based largely on analysis of congressional debates, it shows the enduring value of close readings of primary sources, interpreted with the aid of rich contextual knowledge. Such readings remain more essential to generating powerful new substantive insights than software-conducted quantitative analyses of content, useful though those can be. The book’s substantive insights include nuanced understandings of the politics and goals of many of the major figures in the 39th Congress, as well as the aforementioned argument about what we should understand constitutions to be and to do.

But we advance knowledge more through critical engagement than through unqualified praise, so I will now pause the latter and focus on two concerns I have about the book. They are related concerns, because they both arise from the conviction that values and ideas are often empirically important, and normatively always important, in politic.

My biggest concern is the danger that Punish Treason, Reward Loyalty might be interpreted to say that those who wrote the 14th Amendment really cared only about their own power, that they placed little value on the provisions of Section 1 and gave little thought to them--which might be taken to mean that we shouldn’t give much weight to them, either. Partly because Graber feels, understandably, that he needs to push hard on the undeniable point that the framers of the 14th Amendment mostly discussed how to structure power to entrench loyalist control, not what the provisions of Section 1 meant, he suggests that treating Section 1 as the star of the 14th Amendment is like treating Osric as the start of Hamlet (pp. 14-15). I confess I had to check who Osric was in the play. (In my defense, I was taught in graduate school that political scientists should read Shakespeare’s history plays). So, if we think Section 1 is like Osric, we might think Section 1 is not particularly important, because the 14th Amendment framers were most concerned with their own interests.

Graber in fact concludes his introduction by posing it as a question whether those framers were fundamentally “egoists” who selfishly “were far more interested in empowering and protecting themselves and white people like themselves than in empowering and protecting persons of color,” or whether many had “convinced themselves that permanently dethroning the slaveholding elite both nationally and in the former Confederate states was the last step necessary to bring about a new era of race relations in the United States and the American South” (p. 15). He says the answer to that question must await the future volumes in his series. The ensuing chapters of this book provide abundance evidence that, in fact, many 14th Amendment supporters were much more interested in empowering themselves than in protecting the civil rights of Black people. Graber shows repeatedly that for many Republicans, one of the “privileges” they sought to secure in reward for the loyalty of whites “was the right to discriminate against persons of color” (pp. 156, 219).

Still, he concludes only “that the issues of preventing rebel rule and achieving racial equality immediately after the Civil War” were deeply “entangled,” just like “the issues of achieving military victory and abolishing slavery during the Civil War” (p. 217). He notes that even Republicans who supported Colorado statehood in the face of Black disfranchisement there confidently predicted that “hereafter...this error shall be corrected in their constitution and that all persons, black and white, shall be permitted to vote in that State” (p. 221). He recognizes that at least some 14th Amendment advocates thought more generally that the racially egalitarian principles and goals of Section 1, like the principles and goals of the Declaration of Independence that helped inspire it, would and should be more fully realized over time (p. 179).

Though I agree with all of that, I would stress two things more than Punish Treason, Reward Loyalty does. Rather than suggesting that “naïve enthusiasts” saw the Fourteenth Amendment as the “last step” in achieving a new era of race relations (p. 15), or that they were complacently confident that racial progress would come over time more or less of its own accord due to changes in white hearts and minds (p. 221), it seems appropriate on Graber’s own premises to emphasize that at least some saw securing loyalist power via the 14th as vital for a continuing political project of actively realizing the shared goals of Section 1 and the Declaration.

As Graber writes, constitutional reformers in this era as well as others “sought to refigure constitutional politics in order to privilege particular constitutional visions” (p. 1). The Republicans had made clear in their 1860 Platform that their still-new party envisioned the Constitution as dedicated to advancing “the principles promulgated in the Declaration of Independence,” and their 1864 platform acknowledged that the Constitution had to be amended in order to make this dedication more fully the case. In 1865 those commitments led to the 13th Amendment, which Graber persuasively portrays as expressing the values that made elaborate discussion of Section 1 of the 14th Amendment unnecessary (pp. xxix,163). Many Republicans then supported strong Reconstruction initiatives like a broadly empowered Freedmen’s Bureau, land redistribution, creation of educational institutions, D.C. statehood, and the 14th and 15th Amendments, displaying a willingness to undertake whatever seemed necessary to move their vision closer to reality. These active initiatives, as well as the powerful, ultimately successful resistance they encountered, are, as I understand it, to be the subject of Graber’s proposed volume 3, tentatively entitled Reconfiguring Constitutional Politics. I would have had him stress more in this work how some reformers had these initiatives in mind from early on, even though they would fail to achieve most of their racially egalitarian aspirations.

I would also emphasize that even though for many congressional Republicans, concerns for their own power and the power of loyalist whites were first and foremost, they nonetheless did adopt Section 1, providing a constitutional foundation for further racially inclusive egalitarian initiatives, particularly empowering the Congress to pursue them, while also providing additional authority to do so to all branches at all levels of American governance. For many purposes, what they did is more important than why they did it—unless we mistakenly decide to dismiss Section 1 as of peripheral importance in the 14th Amendment. I hope Punish Treason, Reward Loyalty is not taken, contrary to what I believe to be its intent, to justify such dismissals. But there are many on the Left as well as the Right who, for vastly different reasons, are all too eager to say that Section 1 does not truly authorize a racially egalitarian agenda that the nation has an obligation to pursue. The Right, of course, opposes such an agenda. Some on the Left hate the idea that America’s badly flawed Constitution might be read to authorize it.

My second, lesser concern with Graber’s book also looks ahead to his future volumes. There is no doubt that, as he argues here, the 14th Amendment was more successful in empowering loyalists than it was in advancing racial equality. Even so, Republican domination of Congress and national presidential elections soon began weakening, providing much of the impetus for the 15th Amendment, which nonetheless failed to reverse that trend. The question thus arises, why did support for racial equality diminish so greatly that by the mid-1870s, much of Reconstruction, except for efforts to protect Black Republican voters, was over? Existing scholarship provides many reasons, pointing to the desires of northern capitalists to restore agricultural production in the South; to continuing widespread racism among whites, which contributed to electoral losses for Radical Republicans in congressional elections; and also to a tacit pact between white Westerners and Southerners to partner in both Chinese exclusion and Black re-subjugation, among other factors.

But I want to urge attention to a fact that the congressional and other political speeches and pamphlets of the 1870s and the rest of the 19th century bear out. Beginning in the late 1860s, there was a resurgence of intellectual beliefs in the reality of racial inequalities, greatly abetted by the publication of Darwin’s The Descent of Man in 1871 and the broader spread of evolutionary ideas challenging, especially, the religious doctrines of human equality that had gained wider acceptance as the Civil War proceeded. Those intellectual beliefs eroded the high moral ground that proponents of racial equality briefly occupied in the mid-1860s.

Of course, we might dismiss the widespread embrace of these new scientific claims as simply instrumental to underlying motives of economic gain and political power. But it is ironic, if indeed it is not a performative contradiction, for those of us who engage in advancing social scientific ideas about politics to presume that scientific ideas have no independent impact on politics. If our presumption is that their ideas really did not matter to them or to anyone else, but that our ideas may well really matter to us and to everyone else, I recommend a humbler stance. We should include in our investigations the possibilities that a changing intellectual climate helped foster, and did not only reflect, a changed political climate. I trust that Mark Graber, who has advanced such terrific ideas in this and all his previous works, will not neglect the role of others’ ideas in his subsequent studies of the Reconstruction amendments. I trust; but like another old guy originally from Illinois, I will also look to verify.

Rogers M. Smith is Christopher H. Browne Distinguished Emeritus Professor of Political Science at the University of Pennsylania. You can reach him by e-mail at rogerss@sas.upenn.edu.