Flashback, June 1866: Trying to Win Justice and Peace Through Reconstruction

The struggle between North and South did not end at Appomattox. Instead, it switched decisively, in June 1866, from massed armies maneuvering around natural boundaries to the halls of Washington, where Congress tried to outflank a Southern-born President in order to defend the rights of recently emancipated slaves.

In mid-1866, like now, the House and Senate were dominated by Republicans, and the meaning of loyalty filled the political discourse. But back then, unlike now, an activist majority tried to ensure and extend the rights of citizenship, as Congress used its not-inconsiderable powers of investigation and legislation to advance its agenda.

But Andrew Johnson proved that a carefully crafted House and Senate strategy can by stymied by an obstructionist President—even a politically maladroit, unpopular one.

This past weekend, I saw The Free State of Jones, a film with most unusual subject matter: not just the “secession within secession” staged by poor whites in the Civil War, but also their abortive alliance with freedmen in the decade after the guns ceased firing. 

Most remarkable is its attempt to address America’s Reconstruction period—an era three times as long, by a conservative estimate, as the war itself, but only covered, to any significant degree, by three major Hollywood releases: Birth of a Nation, Gone With the Wind, and The Outlaw Josey Whales; a now all-but-forgotten feature about the President at the heart of it, Tennessee Johnson; and, on TV, the mini-series Roots II and a 1979 TV movie adaptation of Howard Fast’s novel, Freedom Road, starring Muhammad Ali, in a rare acting role. It’s a dismal commentary that the first three productions, the most widely seen, are also the most fundamentally inaccurate. (I considered the outsize role of Birth of a Nation and Gone With the Wind in shaping Americans’ attitudes to this era in this prior post.)

It is less likely that Hollywood has developed a sudden interest in this dimly-understood era than that a star’s box-office clout has carried the day. Matthew McConaghey did not always possess the kind of leverage to launch a historical film: some years ago, I recall one of my instructors at a summer writing program discussing how a screenplay about the early 19^th-century Native American warrior Red Eagle had vanished with McConaghey’s name attached to the project because of the subpar box-office performance of Mel Gibson’s The Patriot. 

All power to the star of Dallas Buyers Club and True Detective, then, for committing his prestige to The Free State of Jones and shining a light on a period that has been all too often distorted—not just in cinemas but, far less understandably, the groves of academe for much of the early 20th century. 

Although the movie sags slightly in the middle and could have recruited an African-American with similar star power as McConaghey, it manages to spotlight, economically, a host of events involving the Civil War and Reconstruction in the Deep South: fierce dissent in pockets of the Confederacy, the education of freedmen, the “Black Codes” in the immediate postwar period that sought to place them in de facto slavery, their rising voting-rights activity, and the domestic terrorism practiced by the Ku Klux Klan. (A full consideration of the film can be found on this post by Prof. Michael Steudeman from the University of Memphis, from the "Rhetoric, Race and Religion" blog.)

By the end of 1865, conditions in the defeated South were every bit as dark and desolate as depicted in the film, probably even more so. An entire economic and social order built on slavery had collapsed. On the one hand, defeated secessionists desired readmission to the Union on essentially the status quo basis that existed before the Civil War. At the same time, unable to vent their anger over losing on the Northern victors, they turned on freedmen and unionist poor whites who were far more vulnerable.

At first, Congressional Republicans had yielded the initiative on Reconstruction to Johnson, certain that, as a Southerner who had, against all odds, sided with the Union, he would deal with former Confederates far more harshly than Abraham Lincoln. To their astonishment, he had far more sympathy with Southern whites, even those who had risen in rebellion, than with freedmen. 

After months of watching the President fail to protect African-Americans or Union loyalists in the South, the House of Representatives and Senate agreed to form the Joint Committee on Reconstruction to "inquire into the condition of the States which formed the so-called Confederate States of America, and report whether they, or any of them, are entitled to be represented in either house of Congress.” 

Over the next several months, nearly 150 witnesses would be called, including one who would have been familiar to many members from his past service in the House, the former Vice-President of the Confederacy, Alexander H. Stephens. Unbelievably, he argued that Southerners’ views on “constitutional liberties” had not changed after the war, and that included even the “abstract principle” of secession. They expected that “immediately the states would be brought back into their practical relations with the government as previously constituted,” so that they could “look to the arena of reason and justice for the protection of their rights in the Union.”

“Their” rights meant those of the former Confederates. As for the freedmen, Stephens felt that the South “would be unwilling to do more than they have done for restoration.”

This kind of attitude didn’t sit well with the Joint Committee. The views of its 15 members could not be said to be even remotely bipartisan—only one senator and two congressmen were Democrats—but now, Southern intransigence, combined with abundant testimony about the retribution visited upon freedmen and Unionist whites, propelled more conservative Republicans such as Committee Chairman William Pitt Fessenden to ally with the so-called “Radical Republicans,” led by Rep. Thaddeus Stevens (pictured). 

Deeply provoked, the Joint Committee, in its report issued June 20, 1866, warned, in language that Southerners would have found punitive but that Northerners saw as only just, that the federal government “had a perfect right to exact indemnity for the injuries done” in the Civil War, and that, far from being states, the former units of the Confederacy had, by the conflict’s end, been reduced to “disorganized communities” without civil governments, constitutions or “established and recognized rules,” and thus that Congress was not obliged to respect any rights they claimed. 

The former Confederate states could only resume their place in the government, the Joint Committee concluded, by guaranteeing the rights of the freedmen and excluding Confederate officials. For readmission to Congress, they needed to ensure “such constitutional or other guarantees as will tend to secure the civil rights of all citizens of the republic; a just equality of representation; protection against claims founded in rebellion and crime; a temporary restoration of the right of suffrage to those who had not actively participated in the efforts to destroy the Union and overthrow the government, and the exclusion from positions of public trust of, at least, a portion of those whose crimes have proved them to be enemies to the Union, and unworthy of public confidence.” 

None of the above remedies mentioned economic solutions for the freedmen. The one conceived of by the Radical Republicans, land grants, was born of one of their landmark measures passed during the Civil War, the Homestead Act of 1862. But the Southern Homestead Act, passed on June 21, 1866, demonstrated the limits of even relatively well-intentioned legislation.

The legislation opened up 46 million acres of public domain land in Alabama, Arkansas, Florida, Louisiana, and Mississippi. In an attempt to ensure that freedmen and loyal whites would have a first opportunity at the land, Congress instituted a six-month later starting date for former Confederates. But the legislation missed the goal of real land reform, for several reasons:

*Often, many freedmen could not capitalize on the six-month window because of labor contracts that ran through January 1867.  Additional problems were encountered in Louisiana because of severe flooding and closed land offices.

*Rather than awarding land from subdivided plantations confiscated from their Confederate owners, Congress designated public land that was poor in quality and hard to till.

*Because much of the public land was given over to timber, fraud and racial intimidation were rampant, trespassing and homestead entries by people who did not intend to farm the lands.

*Many freedmen had no means to travel to these newly opened lands, which were not only far away from where the claim were filed but also in either the Deep South or over the Appalachians. Even when ordered to assist them, Army troops were inconsistent in doing so.

*Many freedmen did not even own enough capital to buy equipment for tilling the land.

*Though accused of vengefulness, many Republicans, even a number of Radicals, would not go along with the idea of seizing the only abundant, fertile land: massive plantations of former slaveowners.

*The idea of the federal government granting freedmen additional favors ran against the grain of both mainstream Protestants with their belief in earthly rewards coming through hard work and against the Republican Party base, which believed in a free-soil ideology with as much appeal to racists who feared black labor as to abolitionists.

As a result, Congress repealed the Southern Homestead Act only 10 years after passage.

The Free State of Jones rightly spotlights the shriveled promise of the Fifteenth Amendment to ensure voting rights for African-Americans. But in June 1866, the Radical Republicans managed to pass another so-called “Reconstruction Amendment,” the Fourteenth Amendment. Like the Fifteenth, it did not produce what it originally promised, but it ended up becoming perhaps the most important and controversial of the post-Bill of Rights amendments to the Constitution.

The amendment, particularly in the first section, was worded broadly, even vaguely—an intention of its creators, to allow as much flexibility as possible in case of further incursions on the rights of freedmen. The crucial portion of this amendment was Section 1, with such hotly debated clauses as the “privileges and immunities” of citizens, “due process,” and “equal protection of the law.”

The amendment had its drawbacks (e.g., by extending rights explicitly to males, it fractured the coalition of women and African-Americans that had been so important in the abolitionist movement). The ambiguity of its language also allowed judges in the Gilded Age and early Progressive Era to consider corporations as “persons” while bypassing the African-Americans who were the legislation’s intended beneficiaries. 

But beginning in the 1930s, judges began to apply the amendment in more and more civil-rights cases—and, with greater explicitness than before, it defined citizenship as a matter of birthright.
(It was this aspect of the amendment to which Donald Trump took such heinous exception.) Just as important, through the "due process" clause, the "incorporation doctrine" evolved so that rights spelled out by the federal government began to be applied to states as well.