Wednesday, June 26, 2024

Fashioning a More Coherent Past

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).

Anne Twitty
Mark Graber’s stunning new book challenges most of what we thought we knew about the Fourteenth Amendment and the Republican Congress that drafted it. Punish Treason, Reward Loyalty calls on us to alter our vision—to forget what we think we know about Reconstruction and constitutional reform and return anew to December 1865 as Republicans in Congress sought to put the union back together again. Once there, Graber challenges us to see the constitutional world that they envisioned on its own terms, to imagine what they thought effective reform might entail. The provocative new portrait of the making of the Fourteenth Amendment that emerges from these efforts will unsettle many. But it also, I think, promises to help us fashion a more coherent interpretation of Reconstruction as a whole.
In order to understand the original meaning and purpose of the Fourteenth Amendment, Graber argues, we have to expand our frame of reference. Scholars have generally focused narrowly on the speeches the editor of the Congressional Globe organized under the heading of “Constitutional Amendment.” But Graber has drawn from the body’s deliberations on a whole host of related matters as well. The Fourteenth Amendment, he argues, can only be understood within this rich context since debates over various aspects of Reconstruction often bled seamlessly into debates over the provisions that would ultimately become the Fourteenth Amendment.

Such a broad survey of the body’s proceedings, in turn, introduces a much larger cast of characters than scholars of the Fourteenth Amendment have usually examined. Though Senator Charles Sumner (R-MA) and Representatives Thaddeus Stevens (R-PA) and John Bingham (R-OH) play an important role in Graber’s account, they share the spotlight with their colleagues. These fellow Republicans, as well as Democrats, Unionists, Unconditional Unionists, and Independent Republicans, may never have been household names—indeed, many, even most, of them, had little individual influence at the time or since. But understanding their motivations and concerns are key, Graber argues, if one wants to truly understand what the Fourteenth Amendment was all about. 
For Graber, all this thick description reveals a “forgotten Fourteenth Amendment” that has been lost to us. This forgotten Fourteenth Amendment differs in startling ways from our contemporary one. To start, Graber argues, the majority in the Thirty-Ninth Congress viewed the political and financial guarantees of Sections 2-4, not the civil rights and racial equality guarantees of Section 1, as the central provisions. This conviction, in turn, was rooted in their assessment of both the most pressing problems they faced and the best way to address them. Although the desire to repudiate the Black Codes played a role in the framer’s deliberations, these were lesser concerns, in no small part because Congressional Republicans believed that the Thirteenth Amendment and other constitutional provisions like the Guarantee Clause already imbued them with the power to protect freedpeople. For Congressional Republicans, Graber asserts, it was, instead, the threat of resurgent rebel rule and the need to protect those who had remained true to the Union cause that was paramount. They needed, as Graber’s title proclaims, to punish treason and reward loyalty. These goals, they believed, would not be secured by constitutional text that constrained bad actors, but, rather, through constitutional politics that empowered their own political coalition. Consequently, Graber argues, the majority in the Thirty-Ninth Congress crafted an amendment whose key provisions (Sections 2-4) would configure the government in such a way that secured the continued supremacy of the Republican Party. Political power, not constitutional text, was essential to controlling the meaning and interpretation of not only the Thirteenth Amendment, but the Constitution as a whole, and, as Graber argues, the Fourteenth Amendment was designed by Congressional Republicans to make sure they remained on top.
Because Graber’s account contradicts many longstanding assumptions about the original meaning and purpose of the Fourteenth Amendment, many will no doubt find it deeply unnerving. If it isn’t quite the world (of the Thirty-Ninth Congress) turned upside down, it can feel that way.
Graber first throws us off balance by inverting our understanding of the relative importance of the Fourteenth Amendment’s various provisions when they were drafted. For us, Section 1 has been, by far and away, the most important part of the Fourteenth Amendment. Indeed, the interpretation and study of the Fourteenth Amendment in our world is almost entirely the interpretation and study of Section 1. But the very section we fetishize, Graber argues, was largely seen as irrelevant by the Congress who authored it. In their many debates over constitutional reform, they spent far, far more time discussing the provisions that ultimately became Sections 2-4.
Graber’s interpretation, however, isn’t merely unsettling because he asserts that Sections 2-4 were more important than Section 1 at the time they were written. He is making a more foundational claim, namely that the framers of the Fourteenth Amendment had a very different conception of how a constitution worked than we do. By asserting that their focus was on constitutional politics, not constitutional text, Graber has presented the framers’ world as fundamentally at odds with our own. Those who drafted the Fourteenth Amendment, Graber argues, thought in terms of political power rather than judicial interpretation. They understood Constitutions as structures that empowered particular political coalitions, not words that constrained either faithful or unfaithful governments.
This claim should be especially disconcerting to constitutional originalists, who tend to decipher the original meaning of the text of the Fourteenth Amendment as if it was written for them and their textualist, judicial-centric methods. Originalists often uncritically conceive of constitutions as statute-like texts and presume that such habits were the natural outgrowth of written constitutionalism. Graber’s account, however, reveals that such assumptions are ahistorical. The framers of the Fourteenth Amendment did not share originalists’ logic, they were engaged in a different brand of constitutionalism than we are today.
Finally, Graber’s account of the Fourteenth Amendment upsets a more romantic account of Reconstruction generally. It not only decenters Section 1’s lofty principles of birthright citizenship, due process, and equal protection and suggests that (what may seem like crass) political considerations, rather than soaring rhetoric, undergirded the original Fourteenth Amendment, it also paints Reconstruction in less exalted terms, at least by our own lights. It suggests that if the architects of the Fourteenth Amendment were indeed radical, their radicalism was focused on achieving different goals than the ones that tend to motivate us. They were “far more concerned,” Graber argues, “with fashioning a loyal South than a South committed to free labor, racial equality, or some notion of fundamental human rights” (113). As a result, Graber’s interpretation unsettles the powerful rise-and-fall story of an era that pits good against evil, ideals against the forces of reaction.
By upending these prevailing understandings of the making of the Fourteenth Amendment, however, Graber may help us better explain Reconstruction as a whole. 
Let me explain: as a historian, as someone responsible for explaining Reconstruction to students, I have often found traditional narratives about both the era and its constitutional reforms wanting. To give you a sense of what I mean, consider just a few of the quandaries those narratives raise: If the majority in the Thirty-Ninth Congress thought Section 1 was the most essential provision of the Fourteenth Amendment, or operated under the assumption that rights were best protected through text rather than politics, then why did they spend so little time debating the specific language of Section 1? If the constitutional reforms Reconstruction-era Republicans proposed were motivated, first and foremost, by concern for the formerly enslaved, why did the exact same actors prove to be such unpredictable friends to the freedpeople? Why, more broadly, did the promise of Reconstruction, by which we generally mean its potential to remake the South in a just way and truly dismantle all residue of slavery, so quickly collapse into the retreat from Reconstruction? Graber’s account of the original meaning and purpose of the Fourteenth Amendment, I think, enables us to begin formulating more satisfying answers to these questions that the ones we’ve generally received.
After all, if we take Graber’s view seriously—if we see the Thirty-Ninth Congress as focused on Sections 2-4 rather than Section 1, as committed to constitutional politics rather than constitutional text, and as primarily driven by the need to punish treason and reward loyalty rather than a desire to enshrine racial equality in the Constitution—we get a more persuasive narrative of why Reconstruction unfolded as it did. To begin with, it becomes clear why there was ultimately so little debate over the actual substance of Section 1 during the first session of the Thirty-Ninth Congress. Federal policymakers’ inconstancy toward formerly enslaved people, meanwhile, also starts to make a lot more sense, as does Reconstruction-era Republicans’ willingness to turn a blind eye as would-be western states tried to restrict the franchise to white men. Finally, Graber’s interpretation also provides better insight about why Reconstruction didn’t ultimately produce a racially egalitarian society: because that was never Congressional Republicans’ main goal. It wasn’t only external forces like the Ku Klux Klan, the Panic of 1873, or a reactionary Supreme Court that ate away at such efforts. There were internal forces at play too, namely the fact that the Republicans’ constitutional project was not designed to achieve this end.
Graber’s account of a Forgotten Fourteenth Amendment is deeply provocative. Indeed, given how fully it upends contemporary assumptions—assumptions about the original meaning and purpose of both the Amendment itself and Reconstruction as a whole—it’s sure to be controversial. But if Graber hasn’t given (many of) us what we want, he’s perhaps given us what we need: a narrative of the making of the Fourteenth Amendment that promises a more accurate, more cogent account of the era that produced it.
Anne Twitty is an Associate Professor (Teaching) of History at Stanford University. You can reach her by e-mail at

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