Sunday, June 30, 2024

Parchment Barriers versus Political Power

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).

Rebecca Zietlow

How do you bring back together a nation that has been ripped apart by a civil war?  That was the task of the Reconstruction Congress – not only to free the enslaved people and constitutionalize fundamental human rights, but to ensure the continuing existence of the Union.  Constitutional lawyers tend to focus on the rights provisions in the Reconstruction Amendments, especially Section One of the Fourteenth Amendment.  According to Mark Graber, those lawyers overlook the true meaning and import of the Fourteenth Amendment – that it constitutionalized a political strategy to implement the Thirteenth Amendment and protect the Union in the face of continued rebel resistance.  In Punish Treason, Reward Loyalty, Graber argues that the primary goal of the Fourteenth Amendment was to prevent the rebels from accomplishing through politics what they failed to do by armed, reinstating slavery in all but name and retaking power over the national government.  Constitutional politics, not constitutional law, were essential to restoring the Union, maintaining the abolition of slavery, and protecting the formerly enslaved and their white loyal allies.
Along with its promise of rights and freedom, the Thirteenth Amendment contained the seeds of its potential own demise by amplifying the power of the rebellious states that sought to re-enter the Union.  Formerly enslaved people would now be counted as full persons (not 3/5 of a person, as before) for apportioning representation in Congress and in the electoral college, ironically augmenting the power of states in which so many people had formerly been enslaved.  There was a very real danger that rebel states would take over the federal government again, the oligarchy that was the slave power once more ascendant.  Republicans feared that southern Democrats would form alliances with northern Democrats to undermine the Union victory by reinstating slavery in all but name, repudiate the northern debt and compensate slaveholders, sinking the US economy.  The former rebels, who had just put down the arms that they used to try to destroy the Union, were still rebellious.  The rebels hated the Union that had just militarily defeated them, hated the formerly enslaved people and acted on that hate with vicious violence.  They elected former confederate officers to state office and tried to elect them to federal office.  Structural changes were needed changes to prevent the supporters of secession and rebellion from retaking power and destroying the union through politics instead of force. 
Graber argues that the members of the Reconstruction Congress feared that the Thirteenth Amendment would serve as a mere “parchment barrier” unless it was enforced by people who had been loyal to the Union and supported its mission of freedom – that is, members of the Republican party.  They expressed skepticism of rights provisions that was reminiscent of Madison’s initial skepticism of the Bill of Rights.  Madison believed that structural provisions in the constitution establishing separation of powers and federalism would better protect rights by limiting the power of government.  Similarly, Thaddeus Stevens and his allies believed that without the structural protections eventually enshrined in Section 2, 3 and 4 of the Fourteenth Amendment were essential to insure the guarantee of human rights in the Thirteenth Amendment.  They sought to punish treason by preventing disloyal people from voting or running for office (eventually codified in Sections 2 and 3 of the Fourteenth Amendment) and preventing the rebels from either repudiating the Union debt or paying the rebel debt (codified in Section 4). 
Members of the Reconstruction Congress also sought to reward loyalty by enfranchising formerly enslaved men and white southern loyalists.  Section 2 of the Fourteenth Amendment bases apportionment of representation not on population but on number of voters, thus reducing the representation of states which denied the right to vote to formerly enslaved men.  They protected the physical safety of formerly enslaved people and loyal white Republicans by continuing to station troops in rebel states.  They prohibited rebel states from re-entering the Union if they did not ratify the 14th Amendment and prove that they were loyal to the US and protected the financial interests of union supporters (who were primarily white), especially creditors who loaned money to the Union.  Thus, they created structural protections for the Union which would ensure that future political actors would promote the same values, from paying the Union debt to protecting the rights of freed people, that the Reconstruction Republicans shared.  Graber’s stress on the importance of structure to the 39th Congress is highly persuasive.
Graber argues that maintaining power was more important to the Reconstruction Congress than promoting racial equality.  For example, he shows how during debates over the admission of new states such as Colorado, Republicans were willing to allow racially exclusionary constitutional language because they assumed that Colorado would elect Republicans.  He bases his arguments on a thorough and analysis of the Reconstruction debates of the 39th Congress.  This aspect of Graber’s thesis is less persuasive.  There is a lot of context missing from Graber’s book, particularly the advocacy of free northern Blacks and formerly enslaved people for racial equality and individual rights.  Graber cites but does not give sufficient attention to their petitions to the Reconstruction Congress, asking to be treated as equal citizens with economic and political rights. 
Also unfortunately, this book does not include an analysis of debates over the Reconstruction and Freedman’s Bureau Acts, a central part of the Reconstruction project.  Graber deserves credit for describing the brutal violence towards formerly enslaved people after the Civil War and the reaction of members of the Joint Committee on Reconstruction to contextualize the Fourteenth Amendment debates.  However, downplaying the Congress’ commitment to rights belies the fact that formerly enslaved people were begging for military protection of their rights.  They viewed civil, political and economic rights as inter-connected.  The Reconstruction and Freedman’s Bureau Acts, as well as the 1866 Civil Rights Act, were directed at protecting those rights. 
Most fundamentally, it is impossible to understand the events that graber describes without comprehending the centrality of racism and white supremacy to the rebel cause that Stevens and his allies so abhorred.  Race played a crucial role in determining loyalty and attitudes towards race very much defined vies on the future of a post-war union.  At issue was the question of whether the Union would become a nation governed by the ideology of white supremacy, as both southern and northern Democrats advocated, or reconstituted as a republic characterized by equal citizenship.  After all, formerly enslaved people and free Black people valued voting rights not only for instrumental reasons, so government would adopt policies favorable to them, but also for dignitary reasons.  They valued not only rights, but the right to have rights.  Moreover, equal citizenship for formerly enslaved people was the culmination of years of activism of free Black activists and their white antislavery allies, many of whom took up arms to support the Union along with formerly enslaved volunteers.  After the war, some of those soldiers, themselves engaged in politics during the Reconstruction era. 
One way to read Graber’s book is to view the members of the Reconstruction Congress such as Thaddeus Stevens and Charles Sumner, who led the effort to punish treason and reward loyalty, as unprincipled power-hungry politicians.  However, it would be a mistake to view them in that light because they sought political power for a reason.  They truly believed that maintaining the Union without slavery would only happen due to political reforms.  It is no coincidence that Stevens and Sumner, the strongest proponents of maintaining Republican power, were among the members of the Reconstruction Congress who truly believed in racial equality.  Graber may also place too much confidence in the reader’s knowledge of the Thirteenth Amendment, and the fact that the lawmakers that he discusses viewed that amendment as a font of fundamental rights for free persons.  Enforcing the Thirteenth Amendment, those lawmakers established formerly enslaved people as citizens with equal rights with the 1866 Civil Rights Act.    Unfortunately, like Sections 2-4 of the Fourteenth Amendment, the Thirteenth has largely been consigned to the “constitution of memory” in large part due to the court’s failure to enforce it.  As Stevens and his allies foresaw, only Congress has actively engaged in enforcing the Thirteenth Amendment, and its promise remains largely unachieved. 
Ultimately and ironically, Sections 2-4 became “parchment barriers,” never enforced by any branch of government.  Most tragically, the former rebel states brutally suppressed the vote of formerly enslaved people and their descendants, but Section 2 was never enforced against them, and the representation of those states never reduced.  Moreover, those same states are today enacting laws that disproportionately impact people of color and prevent them from voting.  Section 3 has barely been used.  With Graber’s help, some people from this state tried and failed to enforce it against Trump based on his involvement in the violent attempt to overthrow the presidential election on January 6, 2021.  Section 4 completely ignored even though Republicans in past 20 years have taken government hostage by threatening to default on the debt.
Graber’s most important contribution is showing that members of the Reconstruction Congress did not rely on courts to enforce the constitution, but believed that constitutional politics was the best, if not the only, was to achieve the circumstances in which political actors (not courts) could act to establish and protect human rights.  Lawmakers today would do well to read Graber’s book and follow the example of their Reconstruction predecessors.

Rebecca Zietlow is Interim Dean, Distinguished University Professor, and Charles W. Fornoff Professor of Law and Values at the University of Toledo College of Law. You can reach her by e-mail at

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