The Principled Aims of Constitutional Reconstruction

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).

Alexander Tsesis

            Professor Graber has written a marvelously engaging book, Punish Treason, Reward Loyalty. His focus is on constitutional history rather than solely on how the Reconstruction Amendments apply to various contemporary issues. With that said, the book provides insights relevant to analyzing the Court’s recent decision in Trump v. Anderson, which rejected a claim brought by state voters under Section 3 of the Fourteenth Amendment. The book’s concentration on Sections 2, 3, and 4 of the Fourteenth Amendment refines our understanding of the Republicans’ efforts to maintain partisan primacy of Congress in order to pass nationally enforceable civil rights legislation. Further intriguing is Graber’s plan to eventually deliver a magnum opus that will add three additional tomes about the nation’s Second Founding.

            Punish Treason, Reward Loyalty’s deemphasis of Sections 1 and 5 of the Amendment is unfortunate. True enough, as Graber points out, congressional debates on the Fourteenth Amendment touched relatively little on either of those two provisions. That does not, however, diminish Republicans’ consensus and assiduous commitment in the immediate aftermath of Civil War to the enforcement of equal justice, administration of procedural fairness, and protection of fundamental rights.

            Restrictions on political participation found in Sections 2 and 3 are interlinked with Section 1's commitments to the privileges and immunities of national citizenship, equal protection, and due process under law. The Civil Rights Act of 1875's criminalization of various private discriminatory practices in places of public accommodation demonstrates that the Radical’s vision of Reconstruction went a long way further than the Court’s stilted state action doctrine.

            The central purpose of constitutional reform was not solely to strengthen a political party’s hold on power, which is the key component of Graber’s focused study. The Radical Republican agenda was anchored first and foremost to the Declaration of Independence’s aspirations of life, liberty, and the pursuit of happiness. Abolitionists like Frederick Douglass, Lucy Stone, William Lloyd Garrison, and Wendell Phillips had since the 1830s called for a revival of the Declaration in American law. After decades of being reviled in the South and the North, abolitionist ideals became the mainstays of Radical Reconstruction in the heady days just before and after Appomattox, when the Thirteenth Amendment was ratified and debates on the Fourteenth Amendment were taking shape in the halls of Congress.

            The death and destruction wrought by a civil war that the Confederacy had initiated to secure perpetual slavery, led even moderates, like Senate Judicial Committee Chairman Lyman Trumbull, to support legislative and constitutional initiatives. During this period, Radicals briefly held leadership positions on several powerful congressional committees–including Senate Committees on Foreign Relations, Territories, Finance, Public Land, Military Affairs, as well as the Joint Committee on the Conduct of the War. Many of those who held leadership positions–including Senators Charles Sumner, Benjamin Wade, Henry Wilson, and James Harlan–had for decades demonstrated their commitments to anti-slavery efforts. Their political aspirations were entwined with the commitments against persistent racial discrimination. In a brief stretch of time, their dedicated efforts on behalf of civil rights legislation led to the passage the Slave Kidnapping Act of 1866, the Peonage Act of 1867, and the 1867 amendment to the Judiciary Act that expanded habeas corpus protections.

            Undeniably, among their greatest achievements was the Civil Rights Act of 1866, which Congress debated the same year the Fourteenth Amendment was introduced. The timing of congressional deliberations on the Fourteenth Amendment indicate that Republicans expected the policy aims behind the 1866 Act to be adopted into the Constitution through Section 1 of the Fourteenth Amendment. President Andrew Johnson’s opposition and ultimate veto of the Act rendered it imperative for Congress to embed principles of congressional authority into the enforcement provision of the Amendment. Efforts to draft a comprehensive Fourteenth Amendment began a month before Congress’ veto override. At the same time, the Freedmen’s Bureau was investigating efforts to enforce plantation owners’ agreements and legal efforts to maintain the labor and apprentice conditions analogous to slavery, despite the previous year’s ratification of the Thirteenth Amendment. The 1866 Act secured citizenship, equality, access to courts, and private agreements, irrespective of race, color, and prior condition of servitude.

            The extent to which Republicans were able to unite behind the Reconstruction Amendments demonstrates their resolve was not solely political. Hence, it seems an overstatement for Graber to assert that the “problem of rebel rule dwarfed the Black Codes as a motivating factor for constitutional reform.” (p. 93). His perspective is closely related to that of Professor William Gillette, who in The Right to Vote: Politics and the Passage of the Fifteenth Amendment emphasized the political aspects of the Republican agenda but unnecessarily downplayed the moral components of Reconstruction. Professors Xi Wang as well as LaWanda and John Cox have written surveys of elections from the period to demonstrate how the principle of racial justice was at the heart of Republicans’ electoral efforts.

            Republicans also believed that the new structure of federal government would enable Congress to rely on their necessary and proper enforcement authority under Section 5 of the Fourteenth and Section 2 of the Thirteenth Amendments. Those expansions of federal civil rights authority, they naively expected, would prevent the Supreme Court from overturning anti-discrimination measures, as it had in Dred Scott, in which the majority held unconstitutional the provision of the Missouri Compromise that had rendered slavery illegal in portions of the former Louisiana Territory. Little did Congress foresee the Court’s subsequent exploitation of interpretive finality to augment judicial authority in Slaughter-House and the Civil Rights Cases.

            Republicans pursuit of a civil rights agenda came despite its negative impart on them at the polls puts into some doubt Graber’s adoption of Professor Derrick Bell’s interest-convergence premise (p. 131). During the woefully brief but momentous years that Radicals held control of Congress, black civil rights and free labor were the central motives that drove their efforts to maintain control of Congress.

            The principled nature of their commitment is evident from the Republican Party’s willingness to lose congressional seats over a central feature of its agenda. In the 40th Congress, which convened on March 4, 1867, soon after passage of the Civil Rights Act of 1866 and the Fourteenth Amendment had been proposed to the states for ratification, Republicans held nearly 80% of the seats in the House but too quickly lost their grip on power. Efforts toward legal equality remained at the forefront of the Republican agenda. By 1875, the Democratic Party held 65% of the House seats. Before power changed hands, the lame duck Congress met in March to pass the Civil Rights Act of 1875. Despite its election losses, the Republican Platform of 1876 continued to declare:

that all men are created equal; that they are endowed by their Creator with certain inalienable rights, among which are life, liberty, and the pursuit of happiness; that for the attainment of these ends governments have been instituted among men, deriving their just powers from the consent of the governed. Until these truths are cheerfully obeyed, and if need be, vigorously enforced, the work of the Republican party is unfinished.

By 1880, that language was dropped from its platform.

            Perseverance in the face of electoral defeat suggests that the Republican Party, at least until the Compromise of 1877, aspired to strengthen the national commitment to fundamental liberties and equal rights. Graber’s account unnecessarily undervalues the aspirational sincerity of the Reconstruction Congress’ effort to achieve equal justice, even at the risk of political backlash. Radical Republican’s ambitions transcended their political interests. Radical Republicans sought to augment political power in order to enforce equal liberty.

Alexander Tsesis is D’Alemberte Chair in Constitutional Law and Professor of Law at the Florida State University College of Law. The author is grateful for helpful suggestions from Travis Crum, Darrell Miller, James McPherson, George Rutherglen, and Ariel Tsesis.