The years after the Civil War, until 1877, were replete with novel uncertainties. The country had changed: the qualities that defined antebellum America had vanished; those who had been the most vocal before the war—soon-to-be Confederates—had seen their soapbox taken by the “Radical Republicans,” Republicans who sought to not only end slavery but to bring into effect equality amongst the races. Regardless of political party or geographic location, the country and its citizens had the task of reconstructing the United States, every one of them, and that task began before the Civil War’s end. President Abraham Lincoln spoke of his hope to reconcile the “disorganized and discordant elements” of the country, and he said: “I presented a plan of re-construction (as the phrase goes) which, I promised, if adopted by any State, should be acceptable to, and sustained by, the Executive government of the nation. I distinctly stated that this was not the only plan which might possibly be acceptable.”[i] Lincoln died four days later without fully setting forth his vision for how the nation may reconstruct itself, but events would soon render that vision—broad and ambiguous as it was—antiquated: soon after his death, the same federal government that had grown to enjoy extraordinary power (such as suspending the writ of habeas corpus) would go from having an authentic political genius, Lincoln, at its helm to having Andrew Johnson, a disagreeable at best (belligerent at worst) as executive; and not so long after Johnson took power, roving bands of the Ku Klux Klan acted in concert with state officials throughout the South to subjugate—by any means—those who had been freed.
Even before Lincoln’s death, tension was emerging between the Radical Republicans in Congress and the President, but it would reach a new height during the Johnson administration. One of the most prominent points of tension was the conceptualizing of the former Confederate states: Radicals, led in the House of Representatives by Pennsylvania’s Thaddeus Stevens, saw the Southern states not as states of the Union but “conquered provinces subject to the will of Congress” so when Congress created the Joint Committee on Reconstruction, that committee “set harsh, punitive terms” for readmitting states to the Union.[ii] As much as this emboldened freedmen and their allies to take a stand and fight, it equally roused white Southerners including the former Confederate Vice President Alexander Stephens who, before the Joint Committee on Reconstruction, protested “making the acceptance of Negro suffrage or the Fourteenth Amendment a condition of restoration to the Union.”[iii] For Radicals, the Fourteenth Amendment to the Constitution was not only a sea change in policy and a way to help protect freedmen but also a way for the Republican Party to expand its electorate to include those freedmen. And the necessity for the Fourteenth Amendment became clear after the adoption of the Thirteenth Amendment. The Thirteenth Amendment had passed Congress by the end of January 1865, and the states ratified the amendment before the year’s end. That amendment prohibited slavery and involuntary servitude “except as a punishment for crime whereof the party shall have been duly convicted,” but it left numerous questions as to how freedmen would begin their lives in society at large, and for Republicans, it also presented a political issue: with slavery no longer existing, the Three-Fifths rule—the rule that required, for purposes of congressional representation, each slave to be counted as three-fifth of one person—was also no more; each freedman was a whole person. And most freedmen lived in former Confederate states so when those territories were re-admitted back into the Union as states, Southern states would enjoy more political power than ever before and the commensurate influence on policymaking would soon be felt. The interests of the Republican Party and freedmen had thus aligned, and the Fourteenth Amendment was born: it “declared that Negroes were citizens of the United States and also of the states in which they lived; it attempted to secure to Negroes all the rights and privileges of citizenship; and it provided that any state which denied Negroes the right to vote would then have its representation in Congress reduced proportionately to the number of persons so deprived.”[iv]
The Fourteenth Amendment, remarkable as it was, would be undercut even before Congress passed and the states ratified it. By the end of 1865, those seeking to maintain white supremacy throughout the country had crafted Black Codes which were a thicket of laws dressed up to “prevent vagrancy” but in practice virtually guaranteed that freedmen would be relegated to a second-class citizenship: many of the limitations in the codes shaped the “behavior and movements of Negro labor that seemed to many Northerners to have the effect of enforcing involuntary servitude.”[v] Congress, before Lincoln’s assassination, had contemplated that such events could play out and passed the Freedmen’s Bureau bill, and the following year, Johnson vetoed a bill to renew the Bureau’s existence; Congress did not back down: it passed a bill over Johnson’s veto that kept the Bureau.[vi] While many would come to lament that the Bureau did not do more, in its six-year life, it distributed millions of rations to freedmen and their families and helped set up and run schools for freedmen throughout the South. But Johnson continued his fight against the Radical Republicans, and with the midterm elections of 1866, he saw his opponents take two-third majorities in the House of Representatives and the Senate.[vii] From then on, Johnson was doomed to lose.
Within months of the Radical Republicans sweeping into Congress, they passed the first Reconstruction Act over Johnson’s veto, and that act placed all the former Confederate states except Tennessee under military control. Subsequent acts would set up governments in the military districts, and those governments—to the chagrin of Southerners—were often operated by “carpet bag” Northerners (who packed up their belongings in a carpet repurposed as a bag and headed South).[viii] The military governments were as plagued by corruption as any others, but they did usher in new state constitutions that allowed freedmen to vote and set the territories on a path to being readmitted to the Union. Congress’ effort to overcome Johnson’s veto on the Reconstruction Act was not an isolated event: in 1867, Congress passed the Tenure of Office Act which required Senate consent for the President to remove any federal officer that the Senate had consented to appoint, and Johnson promptly “dismissed Secretary of War [Edwin] Stanton to test the Act.”[ix] The first presidential impeachment in the history of the country ensued with the Radical Republicans ending up one vote short of convicting Johnson. By the end of the impeachment trial, in May 1867, Johnson had relegated himself to being an ineffectual president; he had lost the fight against the Radical Republicans and had his reputation—already not overly positive—tarred.
For the eight years following Johnson’s presidency, the Radical Republicans would have a much more pliant White House occupant, Ulysses S. Grant. As a fellow Republican and the top Union General in the Civil War, he was predisposed to agreeing with the approach of the Radicals, and upon taking office, he had encouraged that not only Congress pass the Fifteenth Amendment—which would read that the “rights of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude”—but also readmit Mississippi, Virginia, and Texas to the Union. When those three territories voted to adopt the Fifteenth Amendment, they were admitted, and the Fifteenth Amendment was soon ratified and put into effect. The country was also grappling with the prominence of the Ku Klux Klan, and Grant’s response was emphatic: he urged Congress to pass the Enforcement Acts and to create the Department of Justice. The Ku Klux Klan Act of 1871 authorized Grant to impose martial law and to suspend the writ of habeas corpus; mass arrests followed, and Attorney General Amos Akerman, the head of the newly created Department of Justice, oversaw the prosecution of thousands throughout the South. But there was not an overarching animus toward the South while Grant was President: he also signed the Amnesty Act which restored rights to the former Confederates with the only exceptions being several hundred Confederate officers.
All of this progress was not to gain momentum. The presidential election of 1876 would become one of the most chaotic in American history, and it would only be resolved by the Compromise of 1877—a deal cut to place Rutherford B. Hayes, a Republican, in the White House in exchange for withdrawing federal troops, working to create legislation that would allow the South to more quickly industrialize, and agreeing that the North would no longer interfere with how the South dealt with its black population. Reconstruction, for all practical purposes, had come to an end, and Republicans and Democrats cut the deal to end it. The framework of laws, the vigilance in enforcing those laws, the potential for creating a more harmonious society, and the hope that the country could find some balance amongst its people had crumbled.
It was not just Congress that had chosen to no longer be the standard bearer for the cause: during the last years of Reconstruction and the decades that followed, the United States Supreme Court became a bastion for those Americans who sought to maintain white supremacy. In 1873, the Supreme Court ruled in a group of cases known as the Slaughterhouse cases that there was a difference between being a citizen of a state and a citizen of the United States thus depriving many of the Fourteenth Amendment’s protections to the people the amendment was intended to defend.[x] Then, ten years later, the Court “invalidated legislation Congress had enacted to try to guarantee to Negroes equal rights in inns, public conveyances, and theaters.”[xi] That ruling hollowed out the Civil Rights Act of 1875—one of the crowning achievements of the Grant administration as it prohibited discrimination in public accommodations ranging from schools to transportation to serving on a jury. The last major blow of the century occurred in 1896—over thirty years after the end of the Civil War and over thirty years after the movement for equal rights hit its apex of the Nineteenth Century—when the Supreme Court ruled in Plessy v. Ferguson that “separate but equal” facilities throughout the country were constitutional.[xii]
There had been optimism as the Civil War came to a close that not only could the United States be brought back together as a country but also become a home to all its people. The Reconstruction era only heightened those hopes as freedmen became involved in politics, had themselves and their families educated, and began working for wages, but the opposing forces were too strong and the politicians who had supported Reconstruction were too weak. By 1896, when the Supreme Court decided Plessy, the result was a foregone conclusion: the momentum of the bygone era of Reconstruction had dissipated, and the opponents of equality had won so handily and entrenched themselves so deeply; it would require transformational change in the country and its people for those actions to be corrected. Those who faced the oppression knew they must wait for nothing less than transformational change to occur—and at that time, the prospects for even marginal change were not apparent.
[i] Abraham Lincoln, April 11, 1865 Speech.
[ii] Richard Hofstadter, Great Issues in American History: From Reconstruction to the Present Day, 1864-1981, 4-5.
[iii] See id. at 5.
[v] Id. at 6.
[vi] See id.
[vii] See id.
[ix] Id. at 7.
[xi] Id. at 7-8.
[xii] Id. at 8.