Tuesday, July 02, 2024

Rewarding Loyalty and the Fifteenth Amendment

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).

Travis Crum 

In Punish Treason, Reward Loyalty, Mark Graber re-orients our attention to the constitutional politics behind the Fourteenth Amendment. According to Graber, “proponents of congressional Reconstruction were far more interested in empowering and protecting themselves and white people like themselves than in empowering and protecting persons of color.” In short, racial equality took a backseat to partisan politics, and the former was advanced only when it served the Republican Party’s interests. In support of this claim, Graber de-emphasizes Section One—which he claims was uncontroversial and thus less important—and focuses on the “forgotten” provisions of the Fourteenth Amendment—namely Sections Two, Three, and Four—which sought to entrench the Republican Party in power. I’m confident that others in this symposium will take issue with Graber’s defenestration of Section One, so I want to focus on his book’s substantial contribution to our understanding of the constitutional politics of Reconstruction while also critiquing Graber’s invocation of Derrick Bell’s interest-convergence theory to explain the Reconstruction Framers’ motives.

Graber’s book is an extraordinarily deep dive on the First Session of the Thirty-Ninth Congress, which ran from December 1865 through July 1866. During that illustrious session, Congress refused to seat the defeated South, proclaimed the Thirteenth Amendment’s adoption, passed the Civil Rights Act of 1866, and proposed the Fourteenth Amendment. Graber’s book is a treasure trove of quotes and votes, of tactics and strategy. Scholars and students will learn a great deal from this rich account.

Graber also correctly and helpfully highlights the political worldview of the Reconstruction Framers. They were in a life-and-death struggle for the future of the Union. Traitors needed to be punished, and loyalists ought to be rewarded. In the South, this divide fell largely along racial lines. In election law, we refer to this phenomenon as racially polarized voting, and it is a crucial concept that undergirds not only the constitutional politics of the Fourteenth Amendment but also the Fifteenth.

As I’ve argued in my own scholarship, racially polarized voting was a feature—not a bug—in the Fifteenth Amendment’s adoption. After the enfranchisement of Black men in ten of the eleven ex-Confederate States by the First Reconstruction Act of 1867, it quickly became apparent that these new voters would almost uniformly support the Republican Party. Meanwhile, Southern white men largely voted for the Democrats. The Reconstruction Framers openly acknowledged—indeed, they lauded—this political reality.  

In pushing for a nationwide Black suffrage statute in 1869, Representative George Boutwell (R-MA) and Senator Charles Sumner (R-MA) listed the number of Black men who would be enfranchised and thereafter vote Republican. During the drafting of the Fifteenth Amendment, Senator Henry Corbett (R-OR) remarked that Black voters were “pretty much the only people in [the Reconstructed] States who were loyal” and the ballot would allow them “to protect themselves.” Senator Edmund Ross (R-KS) aptly stated that “the ballot is as much the bulwark of liberty to the black man as it is to the white.” The right to vote would allow Black men to mobilize and support the Republican Party, which, in turn, would protect their interests. The relationship is symbiotic rather than exploitative.

I suspect that Graber would reply that these quotes are further support for his interest-convergence argument. Indeed, just as Section Two of the Fourteenth Amendment sought to restructure the House and Electoral College to advance Republican interests, the Fifteenth Amendment also did so by changing the electorate. I do not deny that, on some level, Radical Republicans’ ideological commitments also advanced their partisan self-interest. Graber’s book forces us to confront hard questions about the Reconstruction Framers’ motives and constitutional politics. But, in my view, the story is more complicated than Graber’s cynical account for several reasons.

First, once the right to vote is granted, we should expect politicians to represent the interests of their constituents. After all, that’s the whole point of democracy. This is not the usual interest-convergence story of how an unelected Court accommodated racial equality. Second, there was a core group of Radical Republicans—most prominently Charles Sumner—that consistently advocated for Black enfranchisement from the start of Reconstruction. Third, and relatedly, Radicals pushed for Black enfranchisement even at the risk of white backlash. For example, after the Republican New York state legislature ratified the Fifteenth Amendment in 1869, Democrats won the statehouse that fall. Fourth, and most importantly for this blog post, by expanding our temporal horizon, we learn that Radical Republicans succeeded in moving the political center of the party to their position, thus problematizing Graber’s claim that racial equality was sacrificed to partisan goals.

To be sure, Graber acknowledges that “history is a motion picture, not a snapshot.” But he diminishes events after July 1866 by stating that “everyone reading this book who has gotten this far knows what happens in the next part of the movie.” Maybe. Maybe not. In any event, one does not analyze the original Star Wars trilogy by stopping at A New Hope. There are quite a few important developments in the next two films.

Consider Graber’s discussion of the admission debate over Colorado and Nebraska. In its First Session, the Thirty-Ninth Congress sought to admit both territories even though they disenfranchised their tiny Black populations. Graber highlights how these territories’ sparse populations deviated from past norms, thereby revealing Republicans’ attempts to increase their power in Congress and the Electoral College at the expense of their commitment to Black men’s voting rights. In accordance with his narrow time window, Graber largely ends his discussion with President Johnson’s vetoes of these admission bills.

Fast forward to the lame-duck Thirty-Ninth Congress and the story takes a fascinating turn. By this point, the 1866 election had strengthened the Radicals’ hand. Once again, Congress sought to admit Colorado and Nebraska, but this time fundamental conditions were added that mandated Black men’s enfranchisement.  As before, Johnson vetoed the bills. Congress was able to override the Nebraska veto, but not the Colorado one. Reinforcing Republicans’ commitment to racial equality, the Nebraska fundamental condition was also norm-breaking, as Congress had never conditioned a loyal State’s admission on such grounds. Although Graber briefly nods to this subsequent development, it undercuts his claim that Republicans consistently subordinated racial equality to party politics.

By focusing so intensely on the First Session of the Thirty-Ninth Congress, Graber obscures that politics is an iterative game—and politicians know that they are playing that game. We don’t discount Democrats’ sincerity in passing the Affordable Care Act because it took them until 2010 to do so instead of in Obama’s first 100 days.

Let’s return to the broader question of Black men’s voting rights. Radicals lost in early 1866—both as to the Fourteenth Amendment and their attempt to enfranchise Black men in the territories—a point that Graber hammers again and again. But in less than a year, they achieved a stunning reversal with the enfranchisement of Black men in federal domains, which represented approximately 80% of that population. And they eventually prevailed nationwide with the Fifteenth Amendment’s adoption in 1870.

And here, it must be emphasized that six Reconstructed States ratified the Fifteenth Amendment free of any fundamental condition. As I’ve demonstrated elsewhere, these six States’ ratifications were necessary for the Fifteenth Amendment’s adoption. Given the racial demographics of the South, the votes of Black men were essential to the Fifteenth Amendment’s ratification. Thus, this is not a jaded story of interest convergence; Southern Black men were the agents of their own destiny and helped enfranchise Black men in the North, the West, and (most importantly) in the Border States.

By accounting for the constitutional politics of the Fifteenth Amendment, the compromises of 1866 are reframed as temporary defeats rather than a repudiation of Republicans’ commitments to racial equality. Put differently, when analyzing a political party’s motives, a longer time horizon may put things in a new light. 

Travis Crum is an Associate Professor of Law at Washington University in St. Louis. You can reach him by e-mail at

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