Slavery Did Not Die Honestly

A century and a half after the Civil War, the process of Reconstruction remains contested—and incomplete.

The Reconstruction era was both the cause and the product of revolutions, some of which have never ended, and likely never will. Lest this seem a despairing view of U.S. history, Americans need to remember that remaking, revival, and regeneration have almost always characterized the U.S., its society, and its political culture. But no set of problems has ever challenged the American political and moral imagination—even the Great Depression and the World Wars—quite like that of the end of the Civil War and the process of Reconstruction.

Americans love second acts in human stories, with the exception of the second founding of the American republic. It’s never been easy to comprehend or embrace that second founding, which was born of the blood of the Civil War, the emancipation of 4 million African American slaves, and the recrafting of the Constitution in the Thirteenth, Fourteenth, and Fifteenth amendments.

Reconstruction, traditionally defined as spanning the years 1863-1877, was one long referendum on the meaning and memory of the war and the verdict at Appomattox. The great challenge of Reconstruction was to determine how a national blood feud (approximately 750,000 deaths) could be reconciled at the same time a new nation emerged out of war and social revolution. The survivors on both sides—winners and losers in the fullest sense—would still inhabit the same land and eventually the same government. The task was harrowing: how to make sectional reconciliation compatible with emancipation, and how to square black freedom and the stirrings of racial equality with a cause (the South’s) that had lost almost everything except its unbroken belief in white supremacy. This would be a “testing” of even more magnitude than the one Abraham Lincoln described in his Gettysburg Address.

In Lincoln’s last public speech, delivered on a balcony at The White House, on April 11, 1865, and just after news of Robert E. Lee’s surrender to Ulysses S. Grant, he expressed the challenge the broken nation faced: “Reconstruction ... is pressed much more closely upon our attention ... It is fraught with great difficulty. Unlike the case of a war between independent nations, there is no authorized organ for us to treat with ... We simply must begin with, and mould from, disorganized and discordant elements.”

The president’s careful words show his sense of the daunting tasks that lay ahead. “So new and unprecedented is the whole case,” Lincoln said, “that no exclusive, and inflexible plan can safely be prescribed ... [but] important principles ... must be inflexible.” How could Reconstruction policy take the form of flexible plans and inflexible principles? Whose plan, and what principles would prevail? Could American politics ever strike such a balance?

All approaches to Reconstruction had to provide answers to at least three huge questions: One, who would rule in the defeated South (ex-Confederates, white Unionists, black former slaves, Yankees who moved south)? Two, would Congress or the president rule in Washington? Three, what were the dimensions and definitions of black freedom and equality—under law and in human hearts? And on a broad scale, another question encompassed all the others: Would Reconstruction be a preservation of the old, or a remaking of the new? A restoration of the former Confederates to the Union as rapidly as possible, or a second revolution with a constitutional refounding and a remaking of Southern society?

The architects of Reconstruction policies, from the middle of the war down to 1876, included three presidents—Lincoln, Andrew Johnson, and Grant—as well as major Republican politicians such as John Bingham, John Trumbull, William Pitt Fessenden, Thaddeus Stevens, Charles Sumner, and many others. After replacing the murdered Lincoln, Johnson became until 1868, the embodiment of a rapid, lenient vision of Reconstruction, rooted in states’ rights doctrine, white supremacy, and a decidedly non-revolutionary approach to the remaking of the federal Union. The slogan most often associated with Johnson’s vision of Reconstruction, which most white Southerners came to embrace, was “the Union as it was, the Constitution as it is,” which meant a swift reentry to full statehood in the United States, renunciation of secession resolutions, and acceptance of the end of slavery—but no advancement in the civil and political rights of the freedmen.

The “radical” Republicans, however, saw Reconstruction as a necessary process of rooting out the causes of the Southern “rebellion” in the first place, and as an opportunity to forge a new social, legal, and political order. Above all, they were determined to create a truly new nation, and one rooted in at least the beginnings of racial equality in civic and political life.

Reconstruction statesmen did not have ready-made constitutional blueprints to implement in the devastated and chaotic former Confederacy. What they did have is what political leaders still possess to this day—historical experience as well as fundamentally different views of constitutional authority and practice. The radical Republicans, who were ascendant and dominated the process in 1866-1868, believed in activist-interventionist government, in unionism, and for its time, the revolutionary strides for racial equality embodied in the Civil Rights Act of 1866, and the Fourteenth and Fifteenth Amendments. Their experience profoundly infused their actions. These men and their party had overseen an unprecedented centralization of power in the federal government as a means of fighting and winning the Civil War. It is worth remembering, especially in America’s current political circumstances in the early 21st century, that these men of the first Republican Party vehemently believed in government.

Among the many measures they enacted during the war as they invented America’s first “big government” were the first federal income tax, the Homestead Act, subsidies to build the transcontinental railroads, military conscription, U.S. bonds and the greenback dollar as ways of financing the unprecedented challenge of fighting all-out war. Other measures included the Quartermaster Corps (the largest employer in the U.S. other than the Union army), an agency that employed more than 100,000 people by 1864 and became the means by which the North produced the material to defeat the Confederacy, and perhaps above all the emancipation of 4 million slaves and therefore the confiscation of $3.5 billion in property by executive order and military might. The men who forged early Reconstruction policies were the same men who found revolutionary ways to pay for and arm Grant’s and Sherman’s forces, to crush the Confederacy, free slaves, and save the U.S. from dissolution and extinction. They had reason to claim the powers they assumed.

As Reconstruction began, the other side—which included surviving white Southerners who would rebuild the Democratic Party as a white supremacist crusade, and northern Democrats who opposed black rights, an enlarged government, and federal intervention in the South—chose a very different constitutional vision. This persuasion infused by white supremacy, a withering sense of defeat and desperate economic hardship, but also by a profoundly conservative view of federalism, promoted state sovereignty over federal power. They believed that despite the results of the war, the federal government had no authority to keep ex-Confederate states out of the Union, under military rule, and with many whites temporarily disfranchised and black men provided the right to vote and hold office. In this great political-constitutional struggle, one side enacted a revolution none could have fully envisioned in 1860. The other side hunkered down, forged a lethal sense of grievance, employed political organizing, racial solidarity, powerful and lasting myth-making, and terrorist violence to forge a counter-revolution.

Among all the enactments of Reconstruction, none embody the lasting significance, or the heart of the conflict in this revolution and counter-revolution better than section one of the Fourteenth Amendment. It ought to be embraced as a holy writ that binds our national community, that fortifies even the very idea of America born of this second founding. Based, in part, on language proposed by John Bingham of Ohio, an evangelical Christian and former abolitionist, it reads:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the states wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

No more important language exists to this day in the Constitution than Bingham’s two sentences. His goal, as he said many times in the floor debates of 1866 in Congress, was to “federalize the Bill of Rights,” and make the federal government responsible for enforcing the basic human rights of Americans, now meaning blacks and whites, “within the states.” An endless array of complex, heroic, bloody, confused and scurrilous legal history has flowed from this clause.  And at this very moment, a concerted, extremely well-funded crusade is underway among elements of the modern Republican Party, who now gleefully desecrate the ideas of its founders by effectively eroding and destroying the essence of Reconstruction’s greatest achievement—birthright citizenship and equality before the law.

When the 150th anniversary of the passage of the Fourteenth Amendment arrives next June, it is my modest proposal that willing organizations provide every American who will accept it with a simple small-pocket item (the size of a business card, perhaps laminated for durability), inscribed with section one. Willing Americans, with a sense of history, can whip these cards out of their pockets when necessary and debate their fellow citizens about Reconstruction’s two great lasting legacies—the enduring struggles over racism and federalism—which are likely to be with the U.S. forever. But as Americans keep the excerpts in their vest pockets or handbags, they would do well to remember a piece of Frederick Douglass’s wisdom from the Reconstruction years.

In 1869, as he addressed one of the last annual meetings of the American Antislavery Society, which at that moment celebrated the passage of the Fifteenth Amendment, guaranteeing the right to vote for black men (by many seen as a last act of Reconstruction), Douglass left a warning as useful now as it was then. He acknowledged all the abolitionists’ victories and that “opponents” seemed in “full retreat.”

“But slavery is not honestly dead ... it did not die honestly,” he said. Douglass’s words apply to the current racial and constitutional condition. “Had [slavery’s] death come of moral conviction instead of political and military necessity; had it come in obedience to the enlightenment of the American people; had it come at the call of the humanity ... of the slaveholder, as well as the rest of our fellow citizens, slavery might be looked upon as honestly dead.” The former slave was reminding his country that slavery died in all-out war, crushed by military might and the changed minds of some, but not of many others. It had died only against tremendous, bloody resistance. But this warning delivered at the peak of Reconstruction’s triumph fits as well our current historical moment. Racism—like the constitutional persuasions sometimes practiced, wittingly or not, to defend it—never dies honestly. History is never so easy.