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 rebecca.zietlow@utoledo.edu.