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).
Alexander Tsesis
Professor Graber has written a
marvelously engaging book, Punish
Treason, Reward Loyalty. His focus is on constitutional history rather than
solely on how the Reconstruction Amendments apply to various contemporary
issues. With that said, the book provides insights relevant to analyzing the
Court’s recent decision in Trump v.
Anderson, which rejected a claim brought by state voters under Section 3 of
the Fourteenth Amendment. The book’s concentration on Sections 2, 3, and 4 of
the Fourteenth Amendment refines our understanding of the Republicans’ efforts
to maintain partisan primacy of Congress in order to pass nationally
enforceable civil rights legislation. Further intriguing is Graber’s plan to
eventually deliver a magnum opus that
will add three additional tomes about the nation’s Second Founding.
Punish Treason, Reward Loyalty’s deemphasis of Sections 1 and 5 of the Amendment is unfortunate. True enough, as Graber points out, congressional debates on the Fourteenth Amendment touched relatively little on either of those two provisions. That does not, however, diminish Republicans’ consensus and assiduous commitment in the immediate aftermath of Civil War to the enforcement of equal justice, administration of procedural fairness, and protection of fundamental rights.
Restrictions on political
participation found in Sections 2 and 3 are interlinked with Section 1's
commitments to the privileges and immunities of national citizenship, equal
protection, and due process under law. The Civil Rights Act of 1875's
criminalization of various private discriminatory practices in places of public
accommodation demonstrates that the Radical’s vision of Reconstruction went a
long way further than the Court’s stilted state action doctrine.
The central purpose of
constitutional reform was not solely to strengthen a political party’s hold on
power, which is the key component of Graber’s focused study. The Radical
Republican agenda was anchored first and foremost to the Declaration of
Independence’s aspirations of life, liberty, and the pursuit of happiness.
Abolitionists like Frederick Douglass, Lucy Stone, William Lloyd Garrison, and
Wendell Phillips had since the 1830s called for a revival of the Declaration in
American law. After decades of being reviled in the South and the North,
abolitionist ideals became the mainstays of Radical Reconstruction in the heady
days just before and after Appomattox, when the Thirteenth Amendment was ratified
and debates on the Fourteenth Amendment were taking shape in the halls of
Congress.
The death and destruction wrought by
a civil war that the Confederacy had initiated to secure perpetual slavery, led
even moderates, like Senate Judicial Committee Chairman Lyman Trumbull, to
support legislative and constitutional initiatives. During this period,
Radicals briefly held leadership positions on several powerful congressional
committees–including Senate Committees on Foreign Relations, Territories, Finance,
Public Land, Military Affairs, as well as the Joint Committee on the Conduct of
the War. Many of those who held leadership positions–including Senators Charles
Sumner, Benjamin Wade, Henry Wilson, and James Harlan–had for decades
demonstrated their commitments to anti-slavery efforts. Their political
aspirations were entwined with the commitments against persistent racial
discrimination. In a brief stretch of time, their dedicated efforts on behalf
of civil rights legislation led to the passage the Slave Kidnapping Act of
1866, the Peonage Act of 1867, and the 1867 amendment to the Judiciary Act that
expanded habeas corpus protections.
Undeniably, among their greatest
achievements was the Civil Rights Act of 1866, which Congress debated the same
year the Fourteenth Amendment was introduced. The timing of congressional
deliberations on the Fourteenth Amendment indicate that Republicans expected
the policy aims behind the 1866 Act to be adopted into the Constitution through
Section 1 of the Fourteenth Amendment. President Andrew Johnson’s opposition
and ultimate veto of the Act rendered it imperative for Congress to embed
principles of congressional authority into the enforcement provision of the
Amendment. Efforts to draft a comprehensive Fourteenth Amendment began a month
before Congress’ veto override. At the same time, the Freedmen’s Bureau was
investigating efforts to enforce plantation owners’ agreements and legal
efforts to maintain the labor and apprentice conditions analogous to slavery,
despite the previous year’s ratification of the Thirteenth Amendment. The 1866
Act secured citizenship, equality, access to courts, and private agreements,
irrespective of race, color, and prior condition of servitude.
The extent to which Republicans were
able to unite behind the Reconstruction Amendments demonstrates their resolve
was not solely political. Hence, it seems an overstatement for Graber to assert
that the “problem of rebel rule dwarfed the Black Codes as a motivating factor
for constitutional reform.” (p. 93). His perspective is closely related to that
of Professor William Gillette, who in The
Right to Vote: Politics and the Passage of the Fifteenth Amendment
emphasized the political aspects of the Republican agenda but unnecessarily
downplayed the moral components of Reconstruction. Professors Xi Wang as well
as LaWanda and John Cox have written surveys of elections from the period to
demonstrate how the principle of racial justice was at the heart of
Republicans’ electoral efforts.
Republicans also believed that the
new structure of federal government would enable Congress to rely on their
necessary and proper enforcement authority under Section 5 of the Fourteenth
and Section 2 of the Thirteenth Amendments. Those expansions of federal civil
rights authority, they naively expected, would prevent the Supreme Court from
overturning anti-discrimination measures, as it had in Dred Scott, in which the majority held unconstitutional the
provision of the Missouri Compromise that had rendered slavery illegal in
portions of the former Louisiana Territory. Little did Congress foresee the
Court’s subsequent exploitation of interpretive finality to augment judicial
authority in Slaughter-House and the Civil Rights Cases.
Republicans pursuit of a civil
rights agenda came despite its negative impart on them at the polls puts into
some doubt Graber’s adoption of Professor Derrick Bell’s interest-convergence
premise (p. 131). During the woefully brief but momentous years that Radicals
held control of Congress, black civil rights and free labor were the central
motives that drove their efforts to maintain control of Congress.
The principled nature of their
commitment is evident from the Republican Party’s willingness to lose
congressional seats over a central feature of its agenda. In the 40th Congress,
which convened on March 4, 1867, soon after passage of the Civil Rights Act of
1866 and the Fourteenth Amendment had been proposed to the states for
ratification, Republicans held nearly 80% of the seats in the House but too
quickly lost their grip on power. Efforts toward legal equality remained at the
forefront of the Republican agenda. By 1875, the Democratic Party held 65% of
the House seats. Before power changed hands, the lame duck Congress met in
March to pass the Civil Rights Act of 1875. Despite its election losses, the
Republican Platform of 1876 continued to declare:
that
all men are created equal; that they are endowed by their Creator with certain
inalienable rights, among which are life, liberty, and the pursuit of
happiness; that for the attainment of these ends governments have been
instituted among men, deriving their just powers from the consent of the
governed. Until these truths are cheerfully obeyed, and if need be, vigorously
enforced, the work of the Republican party is unfinished.
By 1880, that
language was dropped from its platform.
Perseverance in the face of
electoral defeat suggests that the Republican Party, at least until the
Compromise of 1877, aspired to strengthen the national commitment to fundamental
liberties and equal rights. Graber’s account unnecessarily undervalues the
aspirational sincerity of the Reconstruction
Congress’ effort to achieve equal justice, even at the risk of political
backlash. Radical Republican’s ambitions transcended their political interests.
Radical Republicans sought to augment political power in order to enforce equal
liberty.
Alexander
Tsesis is D’Alemberte Chair in Constitutional Law and Professor of Law at the
Florida State University College of Law. The author is grateful for helpful
suggestions from Travis Crum, Darrell Miller, James McPherson, George
Rutherglen, and Ariel Tsesis.