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).
Rogers M. Smith
Punish Treason, Reward Loyalty is the first of a multi-volume series that Mark A. Graber is writing on the Reconstruction amendments. That series will be a monumental scholarly contribution, both enduring and timely.
When first published, Punish Treason, Reward Loyalty was all too timely. It abundantly vindicates Graber’s longstanding argument that it is usually a mistake to read constitutions as quasi-philosophic statements of principles chiefly designed to be interpreted by judges, other officials, and citizens seeking to act in accordance with those principles. Constitutions are, as Graber aptly puts it, political efforts to structure power to “privilege coalitions with particular interests and values” (p. xxxi). Central to the 14th Amendment, this book persuasively argues, was an effort to restructure power in the American constitutional system so that those who had been loyal to the Union, and the interests and values they saw it as serving, would hold governing power in the United States in perpetuity--not the treasonous rebels of the Confederacy.
The timeliness of this argument came from the grim
reality that the U.S. was, as it is now and will be for some years to come,
engaged in political struggles over the fate of people who gave “aid and
comfort” to an insurrection against the national government. Will they be able
to regain public offices and restructure power so that they may hold it
in perpetuity--subjecting to "termination"
any parts of the Constitution that stand in their way? Or will courts find at
least some January 6th insurrectionists guilty of crimes and/or banned from
public office because, among other offenses, they have violated Sec. 3 of the
14th Amendment? Graber’s research contributed to the 2022 decision
of a New Mexico court to bar a candidate from a county office due to his
participation in the January 6th insurrection. Many states then began
moving to prevent the insurrection-inciting, chronically
criminal former president Donald Trump from appearing on their ballots. In March
2024, a Supreme Court otherwise reluctant to act on the legal issues involving Trump
quickly and unanimously ruled
that while Sec. 3 authorizes states to remove insurrectionists from local and
state ballots, they have no power to act against candidates for national
offices. Despite that result, Graber along with only a few others made a
tremendous civic contribution through scholarship that put the very legitimate
issue of ballot eligibility before the courts and the country.
Along with that monumental contribution, the
methodological and substantive virtues of Graber’s book could be expounded at
length. Based largely on analysis of congressional debates, it shows the
enduring value of close readings of primary sources, interpreted with the aid
of rich contextual knowledge. Such readings remain more essential to generating
powerful new substantive insights than software-conducted quantitative analyses
of content, useful though those can be. The book’s substantive insights include
nuanced understandings of the politics and goals of many of the major figures
in the 39th Congress, as well as the aforementioned argument about
what we should understand constitutions to be and to do.
But we advance knowledge more through critical
engagement than through unqualified praise, so I will now pause the latter and
focus on two concerns I have about the book. They are related concerns, because
they both arise from the conviction that values and ideas are often empirically
important, and normatively always important, in politic.
My biggest concern is the danger that Punish
Treason, Reward Loyalty might be interpreted to say that those who wrote
the 14th Amendment really cared only about their own power, that
they placed little value on the provisions of Section 1 and gave little thought
to them--which might be taken to mean that we shouldn’t give much weight to
them, either. Partly because Graber feels, understandably, that he needs to
push hard on the undeniable point that the framers of the 14th
Amendment mostly discussed how to structure power to entrench loyalist control,
not what the provisions of Section 1 meant, he suggests that treating Section 1
as the star of the 14th Amendment is like treating Osric as the
start of Hamlet (pp. 14-15). I confess I had to check who Osric was in the
play. (In my defense, I was taught in graduate school that political scientists
should read Shakespeare’s history plays). So, if we think Section 1 is like
Osric, we might think Section 1 is not particularly important, because the 14th
Amendment framers were most concerned with their own interests.
Graber in fact concludes his introduction by posing
it as a question whether those framers were fundamentally “egoists” who
selfishly “were far more interested in empowering and protecting themselves and
white people like themselves than in empowering and protecting persons of
color,” or whether many had “convinced themselves that permanently dethroning
the slaveholding elite both nationally and in the former Confederate states was
the last step necessary to bring about a new era of race relations in the
United States and the American South” (p. 15). He says the answer to that
question must await the future volumes in his series. The ensuing chapters of
this book provide abundance evidence that, in fact, many 14th
Amendment supporters were much more interested in empowering themselves than in
protecting the civil rights of Black people. Graber shows repeatedly that for
many Republicans, one of the “privileges” they sought to secure in reward for
the loyalty of whites “was the right to discriminate against persons of color” (pp.
156, 219).
Still, he concludes only “that the issues of
preventing rebel rule and achieving racial equality immediately after the Civil
War” were deeply “entangled,” just like “the issues of achieving military
victory and abolishing slavery during the Civil War” (p. 217). He notes that
even Republicans who supported Colorado statehood in the face of Black
disfranchisement there confidently predicted that “hereafter...this error shall
be corrected in their constitution and that all persons, black and white, shall
be permitted to vote in that State” (p. 221). He recognizes that at least some
14th Amendment advocates thought more generally that the racially
egalitarian principles and goals of Section 1, like the principles and goals of
the Declaration of Independence that helped inspire it, would and should be
more fully realized over time (p. 179).
Though I agree with all of that, I would stress two
things more than Punish Treason, Reward Loyalty does. Rather than
suggesting that “naïve enthusiasts” saw the Fourteenth Amendment as the “last
step” in achieving a new era of race relations (p. 15), or that they were
complacently confident that racial progress would come over time more or less
of its own accord due to changes in white hearts and minds (p. 221), it seems
appropriate on Graber’s own premises to emphasize that at least some saw
securing loyalist power via the 14th as vital for a continuing
political project of actively realizing the shared goals of Section 1 and the
Declaration.
As Graber writes, constitutional reformers in this
era as well as others “sought to refigure constitutional politics in order to
privilege particular constitutional visions” (p. 1). The Republicans had made
clear in their 1860
Platform that their still-new party envisioned the
Constitution as dedicated to advancing “the principles promulgated in the
Declaration of Independence,” and their 1864
platform acknowledged that the Constitution had to be
amended in order to make this dedication more fully the case. In 1865 those
commitments led to the 13th Amendment, which Graber persuasively
portrays as expressing the values that made elaborate discussion of Section 1
of the 14th Amendment unnecessary (pp. xxix,163). Many Republicans
then supported strong Reconstruction initiatives like a broadly empowered
Freedmen’s Bureau, land redistribution, creation of educational institutions,
D.C. statehood, and the 14th and 15th Amendments,
displaying a willingness to undertake whatever seemed necessary to move their
vision closer to reality. These active initiatives, as well as the powerful,
ultimately successful resistance they encountered, are, as I understand it, to
be the subject of Graber’s proposed volume 3, tentatively entitled Reconfiguring Constitutional Politics. I
would have had him stress more in this work how some reformers had these
initiatives in mind from early on, even though they would fail to achieve most
of their racially egalitarian aspirations.
I would also emphasize that even though for many
congressional Republicans, concerns for their own power and the power of
loyalist whites were first and foremost, they nonetheless did adopt Section 1,
providing a constitutional foundation for further racially inclusive
egalitarian initiatives, particularly empowering the Congress to pursue them, while
also providing additional authority to do so to all branches at all levels of
American governance. For many purposes, what they did is more important than
why they did it—unless we mistakenly decide to dismiss Section 1 as of
peripheral importance in the 14th Amendment. I hope Punish
Treason, Reward Loyalty is not taken, contrary to what I believe to be its
intent, to justify such dismissals. But there are many on the Left as well as
the Right who, for vastly different reasons, are all too eager to say that
Section 1 does not truly authorize a racially egalitarian agenda that the
nation has an obligation to pursue. The Right, of course, opposes such an
agenda. Some on the Left hate the idea that America’s badly flawed Constitution
might be read to authorize it.
My second, lesser concern with Graber’s book also
looks ahead to his future volumes. There is no doubt that, as he argues here,
the 14th Amendment was more successful in empowering loyalists than
it was in advancing racial equality. Even so, Republican domination of Congress
and national presidential elections soon began weakening, providing much of the
impetus for the 15th Amendment, which nonetheless failed to reverse
that trend. The question thus arises, why did support for racial equality
diminish so greatly that by the mid-1870s, much of Reconstruction, except for
efforts to protect Black Republican voters, was over? Existing scholarship
provides many reasons, pointing to the desires of northern capitalists to
restore agricultural production in the South; to continuing widespread racism
among whites, which contributed to electoral losses for Radical Republicans in
congressional elections; and also to a tacit pact between white Westerners and
Southerners to partner in both Chinese exclusion and Black re-subjugation, among
other factors.
But I want to urge attention to a fact that the
congressional and other political speeches and pamphlets of the 1870s and the
rest of the 19th century bear out. Beginning in the late 1860s, there
was a resurgence of intellectual beliefs in the reality of racial inequalities,
greatly abetted by the publication of Darwin’s The Descent of Man in 1871 and the broader spread of evolutionary
ideas challenging, especially, the religious doctrines of human equality that
had gained wider acceptance as the Civil War proceeded. Those intellectual
beliefs eroded the high moral ground that proponents of racial equality briefly
occupied in the mid-1860s.
Of course, we might dismiss the widespread embrace
of these new scientific claims as simply instrumental to underlying motives of
economic gain and political power. But it is ironic, if indeed it is not a
performative contradiction, for those of us who engage in advancing social
scientific ideas about politics to presume that scientific ideas have no
independent impact on politics. If our presumption is that their ideas really
did not matter to them or to anyone else, but that our ideas may well really
matter to us and to everyone else, I recommend a humbler stance. We should
include in our investigations the possibilities that a changing intellectual
climate helped foster, and did not only reflect, a changed political climate. I
trust that Mark Graber, who has advanced such terrific ideas in this and all
his previous works, will not neglect the role of others’ ideas in his
subsequent studies of the Reconstruction amendments. I trust; but like another
old guy originally from Illinois, I will also look to verify.
Rogers M. Smith is Christopher H. Browne Distinguished Emeritus Professor of Political Science at the University of Pennsylania. You can reach him by e-mail at rogerss@sas.upenn.edu.