Reconstruction is still revolutionary matter. Those who delve in it find it like a banked fire, still hot and fiery within, for all it has lain under the ashes a whole generation; and a thing to take fire from. It is hard to construct an argument here which shall not be heated, a source of passion no less than of light. And then the test of the stuff must be so various. The American historian must be both constitutional lawyer and statesman in the judgments he utters; and the American constitutional lawyer must always apply, not a single, but a double standard. He must insist on the plain, explicit command and letter of the law, and yet he must not be impracticable. Institutions must live and take their growth, and the laws which clothe them must be no strait-jacket, but rather living tissue, themselves containing the power of normal growth and healthful expansion. The powers of government must make shift to live and adapt themselves to circumstances: it would be the very negation of wise conservatism to throttle them with definitions too precise and rigid.
Such difficulties, however, are happily more formidable in the mass than in detail; and even the period of Reconstruction can now be judged fairly enough, with but a little tolerance, breadth, and moderation added to the just modicum of knowledge. Some things about it are very plain, — among the rest, that it is a period too little studied as yet, and of capital importance in our constitutional history. Indeed, it is not too much to say that there crosses it, in full sight of every one who will look, a great rift, which breaks, and must always break, the continuity and harmony of our constitutional development. The national government which came out of Reconstruction was not the national government which went into it. The civil war had given leave to one set of revolutionary forces; Reconstruction gave leave to another still more formidable. The effects of the first were temporary, the inevitable accompaniments of civil war and armed violence; the effects of the second were permanent, and struck to the very centre of our forms of government. Any narrative of the facts, however brief, carries that conclusion upon its surface.
The war had been fought to preserve the Union, to dislodge and drive out by force the doctrine of the right of secession. The southern states could not legally leave the Union, — such had been the doctrine of the victorious states whose armies won under Grant and Sherman, — and the federal government had been able to prevent their leaving, in fact. In strict theory, though their people had been in revolt, under organizations which called themselves states, and which had thrown off all allegiance to the older Union and formed a new confederation of their own, Virginia, North Carolina, South Carolina, Florida, Georgia, Mississippi, Alabama, Louisiana, Texas, Arkansas, and Tennessee, the historic states once solemnly embodied in the Union, had never gone out of it, could never go out of it and remain states. In fact, nevertheless, their representatives had withdrawn from the federal House and Senate; their several governments, without change of form or personnel, had declared themselves no longer joined with the rest of the states in purpose or allegiance, had arranged a new and separate partnership, and had for four years maintained an organized resistance to the armies of the Union which they had renounced. Now that their resistance had been overcome and their confederacy destroyed, how were they to be treated? As if they had been all the while in the Union, whether they would or no, and were now at last simply brought to their senses again, to take up their old-time rights and duties intact, resume their familiar functions within the Union as if nothing had happened? The theory of the case was tolerably clear; and the Supreme Court of the United States presently supplied lawyers, if not statesmen, with a clear enough formulation of it. The Constitution, it said (for example, in the celebrated case of Texas vs. White, decided in 1868), had created an indestructible Union of indestructible states. The eleven states which had attempted to secede had not been destroyed by their secession. Everything that they had done to bring about secession or maintain resistance. to the Union was absolutely null and void, and without legal effect; but their laws passed for other purposes, even those passed while they were in fact maintaining their resolution of secession and defying the authority of the national government, were valid, and must be given effect to in respect of all the ordinary concerns of business, property, and personal obligation, just as if they had been passed in ordinary times and under ordinary circumstances. The states had lost no legitimate authority; their acts were invalid only in respect of what they had never had the right to do.