Graber on Reconstruction

Stephen Griffin

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).

With Punish Treason, Reward Loyalty, Mark Graber launches a remarkable scholarly project aimed at decisively shifting our understanding of the Fourteenth Amendment and the Reconstruction Amendments generally.  This multi-volume effort is called “The Forgotten Fourteenth Amendment,” which refers to Graber’s principal objective of demonstrating that our historical understanding of the Reconstruction amendments is radically incomplete.

Graber’s project decenters (without necessarily deemphasizing) section 1 of the Fourteenth Amendment, the fount of an enormous river of judicial doctrine.  Why?  Graber foregrounds the political and constitutional objectives of the Republican Party in the immediate aftermath of the Civil War.  The effect is to treat the Party as an institution co-equal to the branches of government.  Situating the Republican Party in those fraught circumstances in turn foregrounds a key issue well known to historians, but not much featured in today’s law school casebooks – what conditions Republicans should impose on the former rebel states before readmitting them to Congress and thus to national politics itself.  Placing the emphasis on the readmission issue has the initial and somewhat startling effect of making us realize that Republicans had to be up to more than advancing the cause of human rights in formulating the Fourteenth Amendment.

Graber advances his claims with high confidence because he realized a substantial trove of evidence on the Reconstruction Congress had been overlooked.  It appears scholars, especially legal scholars, concentrating on discussions of section 1 in the 39^th Congress as recorded in the Congressional Globe were using only a fraction of the relevant evidence.  Graber describes how there were many discussions relevant to the Fourteenth Amendment that were not explicitly identified in the Globe as such.  Discussions revolving around readmission, for example, were extensive and shed considerable light on the objectives of Republicans in formulating the Reconstruction Amendments.

Graber’s analysis and conclusions are thus based on a far wider array of historical evidence than any previous discussion of the Fourteenth Amendment, at least by legal academics.  What does his analysis show?  Republicans realized they were confronting an intransigent South whose elites had no intention of changing their ways.  They sought to continue slavery after the War, even if in another form.  Further, Republicans had concrete reason to think that once back in Congress, Southern Democrats would demand the payment of Confederate war debts and continuation of de facto rebel rule.  In order to respond to this looming challenge, Graber describes how Republicans wanted to create a situation in which the former rebel states would have to provide various guarantees.  Guarantees of rights were certainly part of the Republican plan, but they were not the principal focus.  Graber’s key thesis might be described as structure over rights.  As he puts it: “The Republicans who framed the Fourteenth Amendment thought constitutions work by configuring politics.  They regarded constitutions as mechanisms that privilege coalitions with particular interests and values. . . . The point of constitutional reform was to configure politics in such a way that would enable the people who remained loyal to the Union to control how the Thirteenth Amendment was interpreted and implemented in the foreseeable future.”

This book is volume 1 of a multi-volume project and does not lay out all the evidence for Graber’s thesis.  The book consists of a lengthy preface, which serves as an overview of the entire series, followed by an introduction, five chapters and a conclusion.  By setting out his themes so thoroughly in the preface Graber risks getting ahead of the argument he presents in this single volume.  Not all of Graber’s themes and arguments emerge clearly as his discussion walks up to the formation of the amendments without considering their content in detail.  Scholars who see section 1 as central to Reconstruction might wonder what happened to the Civil Rights Act of 1866.  Graber’s objective in this book is limited to establishing the lens through which the Republican Party viewed the tasks of Reconstruction.

Not taking on the details of the Fourteenth Amendment, however, leaves the argument in this volume hanging.  Scholars who nonetheless are interested in the legal content of section 1 and whether, if implemented properly, it could have avoided the signal failure Reconstruction became for the dream of a multiracial democracy might wonder why they should pay attention as Graber spins out his project through the remaining volumes (which might take some time!).  I believe there are several sound reasons. 

Let me preface these reasons with an observation drawn from my own studies of American constitutionalism.  I began serious study of American constitutionalism a few years prior to the bicentennial of the Constitution in 1987.  So I was a witness to a distinct shift in scholarly attitudes toward the Constitution, although it was certainly not universal.  At the time of the bicentennial, scholars saw the Constitution as more virtuous than flawed – judged over the long run it served its country well as a guarantor of democracy and stable government despite the significant compromises, practical and moral, that were necessary for its ratification.  Those compromises, including the protection of slavery, were relegated to the background of accounts of what happened at the Federal Convention, although not forgotten.  Since the bicentennial scholars have migrated to a more critical view of the bargains of the founding era.  The compromises with slavery are foregrounded in recent accounts and regarded as an essential element of a deeply flawed and morally unacceptable republic.

At the same time, most constitutional scholars see the eighteenth-century Constitution as redeemable.  Where an earlier generation valorized the founders and their eighteenth-century Enlightenment achievement, more recent generations valorize abolitionists, Abraham Lincoln, and the Republican reconstructors as the true founders of today’s multiracial democracy.  The Reconstruction Amendments are seen as directly addressing and solving many (although certainly not all) of the problems and compromises in the 1787 Constitution.  There is an ironic parallelism at work here which nonetheless has had an enormous influence – that is, the original Constitution was terribly flawed despite being understood at one time by Americans as near-perfect, but Reconstruction, at least properly understood, is nearly without flaw (although undoubtedly limited in certain respects).  Indeed, a vast array of legal scholars, professional organizations, and starry-eyed litigation shops converge on representing Reconstruction as when America finally got it right.

This is precisely where Graber’s project poses a deeply unsettling challenge to what has become conventional wisdom.  Suppose, just suppose, that Reconstruction was a product of nineteenth-century values and concerns, just as the original Constitution was a product of eighteenth-century values.  And suppose those values are not fully consonant with our own.  After all, the example of the treatment of women by the Republican reconstructors is a familiar one.  This point can be extended.  Graber’s work, along with that by other insightful historians, suggests that the Reconstruction Amendments themselves, in fact the entire project of Reconstruction, was both the product of political compromise and was inextricably linked with nineteenth-century values different from our own.  Have contemporary lawyers invested too much hope in the First Reconstruction?  And has this been at the expense of studying the genuine constitutional innovations of the Second Reconstruction of the civil rights movement?

Moving back to constitutional doctrine, why should we take notice of Graber’s work in light of the undoubted centrality of section 1 to contemporary constitutional law?  In addition to the benefits of historical accuracy and potential insights, I believe there are several reasons worth considering.

First, Graber’s project highlights the often overlooked issue of how the Constitution can be enforced.  What guarantees that the text will be respected by the people, especially people formerly in rebellion?  This was a real question in the Reconstruction era.  In the debates in the 39^th Congress Graber shows how Republicans worried about new amendments becoming “parchment barriers.”  One response was to give Congress concrete new powers to enforce the amendments, borrowing the “appropriate” language from Chief Justice Marshall’s epochal opinion in McCulloch v. Maryland.  The question of enforcement is highly pertinent today considering Supreme Court decisions creating the relatively new “congruence and proportionality” standard, along with concerns about voting rights in the wake of the invalidation of a key section of the Voting Rights Act of 1965 in Shelby County v. Holder.

Second, a history lesson about the wages of compromise can be useful.  Although it is usually not put this way, I suggest contemporary scholars often see section 1 as fully adequate to solve the problems of racial equality, both during Reconstruction and today.  But not all the Republican reconstructors agreed.  They knew the Reconstruction amendments were the product of compromise and contained provisions that hampered their ability to achieve their goals.  To be sure, some legal scholars have acknowledged, for example, problems with the limited reach of the Fifteenth Amendment.  As Graber suggests, however, (although not fully in this volume) all of the amendments show the debilitating effects of legislative compromise.  This point is surely essential to understanding the fate of Reconstruction.

Third, Graber’s project helps us better understand and make progress on what many scholars consider a critically important issue, indeed something of a mystery: why did Reconstruction fail and could it have succeeded?  Graber makes the point repeatedly that today we are used to the judiciary enforcing the Constitution, whereas nineteenth-century Republicans, imbued with a spirit of partisan supremacy deriving from Jacksonian America, preferred legislative enforcement.  Whether Reconstruction succeeded or failed, it is arguable we should hold not the branches of government responsible, but a political party.  A single political party was collectively in charge of Reconstruction, and that counsels we should avoid siloing the discussion of its success or failure solely within the branches of government.  Would you like a political party in charge of whether you have rights?  Likely not, but Republicans didn’t see a problem with their party-based approach until perhaps it was too late.  Graber’s approach has the effect of posing the issue of the outcome of Reconstruction in a useful way – if we want section 1 to succeed, how is that possible without arranging continual political and legislative support?

Fourth, the last point suggests the utility of a “state-building” perspective on the quest for racial equality and a multiracial democracy.  Political parties and social movements can initiate constitutional change, but to maintain that change over time, government institutions must be provided with the legitimacy to enforce constitutional values over the long term.  Only in the twentieth century did Americans learn that to preserve voting rights, for example, the tendency to turn to the judiciary to enforce rights simply would not work.  Only the administrative state could provide the necessary state-level enforcement to make the Voting Rights Act operational.  And this lesson was learned well only after the Great Depression and the New Deal.  Effective enforcement of civil rights and the achievement of something close to a level playing field for those “loyal” to the Union (to use the terms of Republican reconstructors) would happen only in the twentieth century.  Legal scholars should be more cautious about attributing all of the necessary changes with respect to racial equality to the First Reconstruction.  The Second is equally relevant to understanding how racial equality can best be achieved and maintained.

 Note: Some of this material will appear in a book review essay to be published in Constitutional Commentary.