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.

Flashback, March 1861: Confederate Congress Adopts Pro-Slavery Constitution

Declaring its principles immediately, the Provisional Congress of the Confederate States of America adopted a document that, in nearly all respects, was identical to the U.S. Constitution. The most significant differences, however, involved what the seven seceding states had in common: ownership of slaves, which received special protection.

The last two sentences are so unexceptional that, not too long ago, there would have been a “dog-bites-man” quality to them. But some events and commentary over the last year or so suggest, amazingly enough, that the place of slavery as the primary cause of the Civil War is still very much a live question.

(See, for instance, Virginia Governor Bob McConnell’s statement that he didn’t include slavery in a proclamation of Confederacy History Month because he didn’t feel that it was a “significant” factor for his state, or claims by the Sons of Confederate Veterans that slavery wasn’t the “sole” cause of the conflict.)

How, these people ask, could slavery cause the conflict when a majority of Southern whites did not own slaves, when several border states that (barely) stayed in the Union permitted slaveholding, and when so much of the North was every bit a match for the South in virulent racism?

All granted—and all beside the point.

In a prior post, I discussed how Abraham Lincoln’s Second Inaugural Address—most famous for its eloquent phrase, “with malice toward none, with charity for all”—logically identified the exact way in which slavery lay behind the origins of the war. It involved Southerners’ insistence that the institution be extended into new territories, and the resistance by Northerners to this idea. “All knew,” he said, that “somehow” slavery was the war’s cause.

Some Southern naysayers (the temptation is overwhelming to call them “slavery deniers”) would undoubtedly scoff at citing on this point Lincoln, the Confederacy’s greatest rhetorical foe. He would say such a thing, wouldn’t he? they might ask.

Contemporary Southern Voices on Slavery

But you don’t have to turn to a Northerner to see how the origins of the war were perceived in its own era. You can turn to sources impossible to turn away from—Southern ones.

I’m not even going to discuss here to all the major events of the decade before Lincoln’s election that aggravated North-South relations: the admission of slave vs. free states, the Fugitive Slave Law, Harper’s Ferry, the rise of a Republican Party that opposed slavery’s expansion to the territories, a Democratic Party torn asunder in the election of 1860 by Southern belief that frontrunner Stephen Douglas would not guarantee the introduction of slavery into lands west of the Mississippi.

No, all we have to do is look at what those who mattered in the South—the men who made the laws, who governed, who ruled with the consent of the mass of whites—said or wrote about the place of slavery in their would-be new nation.

Nearly three decades ago, one of my college professors told me he felt textbooks were “a cultural menace to our society.” I think I know what he meant. Already by that point, they were being “dumbed down” so much—so stripped of unusual language or allusions that might be grasped by reading the context of the statement—that, over time, they had become joyless to read and dead on arrival in one’s hands.

How much do high-school history courses encompass primary-document reading outside of texts? And are college history courses that much better in this regard?

I ask these questions because primary documents disclose so much. In the case of slavery as primary cause of the Civil War, they settle the issue resoundingly.

Start with South Carolina, the hotbed of antebellum secessionism. Its secession declaration, released only a few weeks after Lincoln’s election, mentioned slavery no less than 18 times! (If the subject didn’t matter, why did South Carolina keep dwelling on it?)

Slavery Without the Euphemisms

Let’s turn now to the Confederate Constitution. True, some sections, dealing with the structure of the government, departed somewhat from the document molded in Philadelphia by the Founding Fathers. (For instance, the President was limited to a single six-year term, appropriation bills had to pass higher voter hurdles, and Cabinet members were given the right to speak in Congressional debates.) 

But you couldn’t tell many sections of the two documents apart if you placed them side by side.

Except, as I’ve written earlier, those concerning slavery.

Begin with the word itself. The creators of the founding document of the Confederacy had no qualms about using it—unlike many of their descendants in the 20th and 21st centuries, who have preferred to use the far more genteel “servants,” or the Founding Fathers, who couldn’t bring themselves to name at all the African-Americans laboring against their will.

Northern delegates to the Philadelphia convention in 1787, knowing that anti-slavery sentiment was percolating in their states after a momentous war fought in the name of liberty, feared that using the term would enrage many constituents. 

At the same time, they worried that the young nation, hemmed in by foreign powers, would not survive at all without the Southern states.

In contrast, Southern delegates wanted the power and influence of their states recognized as far as possible by counting everyone within their borders as part of the census. 

Yet there were limits to their unanimity. Many Southerners were already either hoping slavery would disappear (James Madison) or moving in that direction (George Washington).

So, in the end, the South yielded to the sensitivities of the North. Thus, only three-fifths of the slave population would count in censuses; moreover, they even went along with the North’s euphemisms for slaves, i.e., “other persons,” “such persons” and “persons owing service.”

Move forward more than 70 years later, to Montgomery. Now representatives of the seceding states had no compunction about naming this group: “slaves.” In fact, “slave” or “slavery” appears 10 times in seven different clauses.

These clauses were rewritten to build firewalls around the rights of slaveowners, who in this document were guaranteed the right to take their property wherever they wanted in the states or territories. 

They even adopted the hard line of Chief Justice Roger Taney, who ruled in his notorious Dred Scott decision that the peculiar institution could never be prohibited from any territory.

The "James Madison" of the Confederate Constitution

Again, there should be no surprise in any of this. One of the Montgomery delegates, Thomas R. R. Cobb of Georgia, regarded as the "James Madison" of the Confederate Constitution (the original manuscript is believed to be in his handwriting), had written the influential Inquiry into the Law of Negro Slavery in the United States of America (1858), which not only argued that slaves, dating back to Roman times, lacked any recognition as persons but gave short shrift to the extensive manumission that occurred in ancient times.

The other Confederate delegates were fully prepared to follow Cobb’s lead. As William C. Davis noted in Look Away! A History of the Confederate States of America, elected officials in the South formed an oligarchy, largely based on requirements that officeholders own considerable property. 

The key aspect of this wasn't merely land but value. In the mountain areas of states such as Virginia, for instance, the land itself had little value for farming. Possession of slaves, then, constituted value. These officeholders were used to deference from not only slaves but even poor whites.

The most oligarchic Southern state was South Carolina, where not only did property-value qualifications rose with the office but even the election of the President was done through the legislature rather than popular vote. It was also the one gripped the most by secessionist fever. 

But elites were hardly confined to that state: 49 of the 50 Montgomery delegates were slaveowners. Many of them regarded fellow officials as, in effect, members of a club. If ever there was a self-interested founding national document, it was the Confederate Constitution.

Slavery the "Cornerstone" of the Confederacy: Alexander Stephens

Finally, we have the word of Cobb’s fellow Georgian, Alexander H. Stephens. 

Bear in mind that Stephens was as far from a fire-eater as the delegates could get. A Whig Unionist who had become friendly with Abraham Lincoln while the two served in the House of Representatives in the late 1840s, he had only yielded after his state had voted in favor of secession in the winter of 1861. 

His election as Vice-President of the Confederacy was meant to signal to the wider world that the South had seceded with only the greatest reluctance.

Yet even Stephens—what passed for a “moderate” in Montgomery—expressed his admiration for the Confederate Constitution in the most radical terms. 

In a speech in Savannah, Ga., on March 18, only a week after the Provisional Congress had adopted the document, he observed that it corrected one of the major errors of Thomas Jefferson and other statesmen of his time, that “the enslavement of the African was in violation of the laws of nature,” that they also violated “the assumption of the equality of races.”

In contrast, the Confederacy, he noted, “is founded upon exactly the opposite idea; its corner stone rests upon the great truth that the negro is not equal to the white man, that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth.”

The "Cornerstone" speech--which goes on to liken this "discovery" to the ideas of Galileo and Adam Smith--deserves recognition, along with James Henry Hammond's 1858 "Cotton is King" speech, as the summa of Southern self-delusion, an intellectual justification of pseudo-science by a self-interested elite that would bring untold carnage and grief in its wake to hundreds of thousands across the nation.

One Founding Document That Endured--And Another That Didn't

It took only 10 days for the Confederate Congress to debate its constitution, and only another two weeks before the required five states put the document into force through votes in favor of ratification.

It was in marked contrast to the U.S. Constitution, which required four months of deliberation and nearly another year after that before it went into effect.

But then again, the document forged in bitter behind-the-scenes disputes on slavery, reflected publicly in clauses reeking in ambiguity and embarrassment, endured far longer than the South’s version, passed with overwhelming consensus by an elite anxious to preserve its ancient privileges, and without any ambivalence over its founding principle: not just racism but the all-encompassing moral and legal subjugation based on that belief system.

This Day in Congressional History (Kansas-Nebraska Act Passed in Haste)

May 26, 1854—His legislation had already passed one key hurdle at an hour even more unearthly, so Stephen A. Douglas didn’t mind the lengths he had to go to this time.

At 1:15 in the morning, after an extension of a session from the prior day, the Illinois Senator and Presidential hopeful watched as a Joint Committee of Congress voted to approve his Kansas-Nebraska Act.

A word of advice to politicians: never decide anything important in the wee hours of the morning, when you’re exhausted, hungry and maybe even a bit liquored-up. George McGovern settled on Thomas Eagleton as his running mate at a similar hour, and we know how that turned out.

(Or maybe some of us don’t or have forgotten, given the disasters involving more recent Veep candidates—so, a fast recap: After fighting tooth and nail all the way to the floor of the convention for the nomination—and after having had, oh, at least a half dozen other people turn him down—McGovern offered the running-mate spot to Eagleton. When asked by a McGovern aide if he had any “skeletons in the closet,” the Missouri senator—a fine man, by most accounts—intrepreted the question a bit narrowly as referring solely to political corruption, and said no. He did not mention his past hospitalizations because of depression, and the McGovern campaign had no time to check even if it wanted to. The result: hysteria over a medical condition that undoubtedly afflicted more politicians than anyone realized at the time, then McGovern reversing his statement that he was “1,000 percent” behind his running mate and asking Eagleton to resign from the ticket. In other words, the most disastrous Veep choice until George W. Bush’s Veep-vetter, Dick Cheney, managed to turn up "skeletons in the closet" on all Bush’s other choices until, magically, there was nobody left but himself.)


Now, if you had told those assembled, on that day in the antebellum republic, that dire consequences would follow an affirmative vote, they might or might not go along with you. So, I think you’d have to spell it out for them:

* a region that rivaled 20th-century Beirut and Baghdad in violent mayhem;
* a Union torn asunder by the legislation;
* millions dead in the resulting Civil War; and
* lingering sectional discord and racism that would linger for generations afterward.

And, for those of a particular partisan stamp: anger over the measure led to the rise of the Republican Party.

Douglas must have thought his Presidential stock has soared after approval of the measure, which, before final passage, had already passed a key 5 am affirmative vote by the Senate. The act put into law the doctrine of popular sovereignty originally proposed by General Lewis Cass in the 1848 Presidential election, then championed by Douglas himself. The doctrine stipulated that the issue of slavery would be decided by territorial voters themselves.

Agitation over slavery was exactly what Douglas did not want. As an early proponent of manifest destiny, he envisioned an America stretching from sea to sea, bound together by all kinds of internal improvements—roads, canals, and railroads. He was particularly passionate on the last subject, and his desire to have a railroad built might have led him to change the bill in committee enough to bring matters to a boil about it in the North.

He could not help but notice that support for his idea of a transcontinental railroad with its eastern hub in Chicago--the major city in his home state--was thin in the South. If he could give the South something it really wanted on something else, he might be able to move this issue forward.

After a meeting with President Franklin Pierce—a Northern sympathetic to the South—and his Secretary of War, the southerner Jefferson Davis, Douglas redrafted his bill, stating explicitly what he had hoped to fudge: that the Missouri Compromise that had governed territorial admittance to the Union for the last 30 years was superseded by the bill. This meant that, if the voters decided it, slavery could be permitted north of the latitude that had prevailed before this.

Another key change occurred in the revised bill: the territory, once simply known as Nebraska, would now be split into two: Nebraska, the northern half, and Kansas, the southern part.

Reaction in the North was furious. The Missouri Compromise had meant that slavery could be confined. Now that was no longer the case. Moreover, the proximity of Kansas to Missouri, a slave state, meant that slaveowners could far more easily populate it than anti-slavery forces could.

At one point in the debate on Capitol Hill, Salmon P. Chase--himself a future Presidential aspirant--accused Douglas of pushing the bill to further his hopes for the White House. In the course of the angry exchange between the two, the phrase "corrupt bargain" was used.

Virtually nothing could cause greater anger to Douglas. As a strong partisan of Andrew Jackson, he knew that this term had been used to describe how John Quincy Adams had snatched the Presidency from Old Hickory: by appointing Henry Clay as his Secretary of State, thereby swinging the latter's key votes when the election was thrown into the House of Representatives. The "corrupt bargain" charge had bedeviled Adams throughout his single term and had helped elect Jackson President.

Two little men were responsible for passage of the bill that caused such big problems for America.

One was Douglas himself, nicknamed “the Little Giant” to emphasize his outsized impact on the republic in the 1850s. He was at once the best-known and most controversial politician in America at this time. The “great triumvirate” of Clay, Webster and Calhoun had grabbed the headlines, as they always did, in the debate over the Compromise of 1850, but it was Douglas who was the legislative mechanic behind that omnibus bill. He was short—only five feet four inches—but on the stump, shouting, gesticulating, working his stocky frame into a sweat, he looked like a prize fighter.

Douglas boasted about his own critical role in the legislation: "I passed the Kansas-Nebraska Act myself. I had the authority and power of a dictator throughout the controversy in both houses. The speeches were nothing. It was the marshaling and directing of men, and guarding from attacks, and with a ceaseless vigilance preventing surprise."

The second little man was Alexander H. Stephens, a sickly congressman who weighed no more than one hundred pounds. He resembled a 20th-century Georgian, Senator Richard Russell, in being a lonely lifelong bachelor who spent much of his time out of the office mastering congressional rules and regulations.

On May 22, just when it appeared the legislation was on the ropes, Stephens, a supporter of the bill, invoked Clause 119 of the House Rules—a clause that hardly anybody ever bothered with—to keep it alive after an unfavorable committee vote. After the Joint Committee of Congress pulled its midnight-oil act, the bill went to Pierce, who signed it four days later.

A big mistake all around. Racist Northerners who once denounced abolitionist agitation now found that slavery might not be excluded in any territory to which they might journey—and that, at a stroke, this undercut the value of their own labor.

In his Life and Times (1881), Frederick Douglass recalled how the measure “made abolitionists of people before they became aware of it, and…rekindled the zeal, stimulated the activity, and strengthened the faith of our old anti-slavery forces.” In his newspaper, Douglas himself called for “companies of emigrants from the free States” to be “collected together—funds provided” and to be “sent out to possess the goodly land, to which, by a law of Heaven and a law of man, they are justly entitled.”

The act also brought back onto the political scene a lanky lawyer, well-known to both Douglas and Stephens, who’d been in a five-year funk after he’d left the House of Representatives: Abraham Lincoln. Lincoln had been on friendly terms with fellow Whig Congressman Stephens and he knew Douglas well from Springfield (Douglas’ friendliness toward Mary Todd led some to surmise that he was a beau of Lincoln’s future wife, though no real evidence has ever substantiated this).

Lincoln was catalyzed by his opposition to the Kansas-Nebraska Act. According to Doris Kearns Goodwin’s Team of Rivals, a fellow lawyer, T. Lyle Dickey, later remembered that Lincoln, upon hearing news of the passage of the bill, had “discussed the political situation far into the night” with him. That fall, upon hearing a three-hour defense of the act by Douglas at the State Fair, Lincoln leaped to his feet at its conclusion to announce to the crowd that he would deliver a rebuttal the next day.

A speech two weeks later at Peoria was even more powerful, laying out how the Founding Fathers had tried to inhibit the spread of slavery—and how the act now threatened to upset this careful moral and political balance. It served notice that Douglas would have a powerful rival on the local and national scene.