The question posed: “Did we have a Constitutional Revolution but not Reconstruct the South?” The answer: Yes and Yes.
A new birth of freedom flourished after the Civil War, one with a constitutional and legal foundation. The guiding principles were citizenship and equality, and there were two modes of protection: prosecutions by the federal government and self-help through the power of the vote.
This was a major Constitutional Revolution. Prior to the Civil War, “we the people” wanted freedom from government. The Bill of Rights protected the people from governmental powers. Amendment One begins: “Congress shall make no law respecting …” and left the decisions to the individual states. The Reconstruction Amendments—13th, 14th, and 15th—institutionalized freedom, due process under law, and the right to vote. Moreover, the Amendments state that “Congress shall have power to enforce …” these civil rights, even against states. This was a basic reconstruction of the U.S. Constitution.
Political philosophy involves an analysis of “positive” and “negative” liberty. Almost a century before Isaiah Berlin wrote about that concept in 1958, Abraham Lincoln knew all about negative and positive liberty. In 1864 Abraham Lincoln told a group in Baltimore, “The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one.” As usual, he told a simple story: “The shepherd drives the wolf from the sheep’s throat, for which the sheep thanks the shepherd as a liberator, while the wolf denounces him for the same act as the destroyer of liberty, especially as the sheep was a black one. Plainly the sheep and the wolf are not agreed upon a definition of the word liberty.” Lincoln was thankful that “the wolf’s dictionary has been repudiated.” But in effect that repudiation is the story of Reconstruction, actually a never-ending story—still being told.
So, what happened to the Constitutional Revolution, the new birth of freedom and liberty declared in the Constitution? We have three branches of government: Congress makes laws; the President enforces them; the Courts interpret them. Each had a role to play, but I have to blame the judiciary and especially the Supreme Court for not leaning into the new Constitution.
Some Justices were reluctant to embrace the changed meaning of liberty and promised protection for all citizens that the Reconstruction amendments gave the Constitution. An early Court case (Blyew 1872) basically approved the state’s right to deny certain Black people the right to testify in court. Justice Bradley, joined by Swayne, dissented vigorously. He said that to refuse the evidence of the whole race “is to brand them with a badge of slavery, is to expose them to wanton insults and fiendish assaults.” He added, “Merely striking off the fetters of the slave, without removing the incidents and consequences of slavery, would hardly have been a boon to the colored race.”
The Court’s decision did not go unnoticed. The federal circuit judge in Kentucky, Bland Ballard, wrote, “If Congress meant what the court says they meant, is not all of their legislation which relates to the negro a mockery?” In 1971 the dean of constitutional historians, Charles Fairman, called this case a “forewarning of things in years to come,” and said that “while reconciliation between North and South progressed, the Court would be making some constructions of the law that were anything but benignant toward those for whose protection they had been adopted.”
Many of you know or can look up the details of the Slaughter-House Cases 1873.The Cruikshank Case 1876, which allowed the murder of Black people as long as the state was not involved, validated inherent violence that held racial hierarchy in place and a reign of terror as ways to control Black people in the South until at least 1965. There were more cases, and then The Civil Rights Cases (1883) ended the legal remedies. Many cases allowed all-white juries, which would not convict whites who abused or even lynched Black citizens. The Supreme Court allowed the 1896 separate but equal law and in 1898 Williams v. Mississippi approval of disfranchisement. In spite of enormous setbacks and against all odds, in some places in the South, some African Americans still voted and even found some alliances with whites. And certainly the memory of Reconstruction and its achievements inspired generations of African Americans after Reconstruction, who eventually successfully used the framework of the first Reconstruction’s amendments and laws in the delayed Second Reconstruction of the Civil Rights movement to reconstruct the American South.
In summary, as to whether a Constitutional Revolution occurred, it is difficult to claim it did not. The 14th Amendment alone reconstituted the entire structure of the federal union, allowing the federal government rather than the states to define citizenship. Combined with the 13th and 15th, the United States added three very important amendments to the Constitution in a space of five years—which has only happened twice—in the original Bill of Rights and in Reconstruction.
Reconstruction: Historians agree less about the second part of the posed question: was the South Reconstructed? Before we tackle Southern Reconstruction, let’s clarify that Reconstruction was nationwide. Reconstruction in the North meant that Black men could vote. (Twice before the Civil War New York had voted against allowing Black men the vote). The vote meant political clout. Reconstruction also went West; recent historical literature has focused on the West—anti-Chinese immigration restriction, and the final push for the full extinction of Indian sovereignty—almost to the exclusion of the former Confederacy.
National reconstruction followed the Republican Party’s political success in 1864. It meant that Reconstruction would continue the wartime program of railroad construction, homestead laws, land-grant colleges (sometimes called “Democracy’s colleges” in the 19th century), an income tax, and national banks—in other words, a new commercial order. Republicans demonstrated great consistency in developing and marketing this particular vision of freedom and order. It was a political triumph. If you extend out the time frame for Reconstruction into the Jim Crow era, you have a reconstructed South with an unprecedented number of textile mills, lumber mills and furniture factories, cigarette factories, exponential growth in railroad mileage, land grant colleges (which for whites and in segregated schools for Black people in the South opened higher education to entire social classes who had been shut out, and this also developed new political leaders).
Nevertheless, it was in the South that white and Black people bore the brunt of what Reconstruction would mean to them. Historians synthesize Reconstruction, but every state was different. Tennessee had no Reconstruction; Reconstruction in Georgia basically was 1868 to 1870, Virginia was different from Florida, and so on. Within each state, every locale was different. Yet the uncertainty was everywhere. No one knew what the end of bondage might bring in its wake. Slavery’s death did not automatically confer any positive rights upon African Americans. It was a period of unity and disunity, of racial coalitions and racial hostilities. During Reconstruction a majority of southerners, fractured by class and by race, nevertheless moved uncertainly, incrementally, grudgingly, and enthusiastically along a path of equality. At the same time, an intransigent white minority, increasingly bound together through paramilitary organizations, insisted upon inequality.
The essential character of Reconstruction was based on traditional American values, with parties on all sides concerned with establishing local systems of workable order in their own communities, according to their own notions of justice and fair play. Like antebellum conflicts between enslaved and master, abolitionist and planter, and Free-Soiler and slaveholder, the conservative drive to resolve practical problems at the local level in Reconstruction generated tremendous unforeseen conflicts that propelled events along a startlingly revolutionary course. This interplay of conservatism and revolution, this interweaving of concerns with order and with freedom define Reconstruction in its achievements and failures both. At Reconstruction’s start only one certainty prevailed: thousands had reason to anticipate its advent and thousands had reason to dread it.
The story of Reconstruction cannot neglect to emphasize how uncertain, how revolutionary, how conservative, and how profoundly democratic this era of change truly was. Most optimistic of all was the political course that hundreds of thousands of African Americans took in the years after slavery ended. Lincoln’s republicanism was taken up anew by freedpeople at the local level across the South. It is fitting that in the years after 1865 those most newly arrived on freedom’s doorstep held the clearest sense of its precepts. From Plato to Thomas Jefferson, James Harrington to Abraham Lincoln, republican theorists had emphasized the political duties and opportunities of citizenship. Emancipation not only marked the birth of African American freedom, it sparked an African American rebirth of republicanism, argued and defended more cogently and fervently than at any time in American history. Reconstruction is the story of that promise.
While on the federal level the President and Congress worked to reconcile states within the Union, on the local level former enslaved people and rebels could do little except feel their way forward tentatively, staking claims to new ways or old habits in their own communities, defending their choices on a daily basis to those they ran up against in the course of labor and community life. In this way ordinary Americans reconstructed their nation according to their own uncertain, conflicted ideas.
After efforts to find lost family members, and now controlling their own families and communities, establishing their own independent churches and other institutions, Black southerners wanted citizenship—suffrage, equal access to the legal system, security, the confidence that the forces upholding the law would protect them. With the vote, they could ensure education and hopefully independence through land ownership. In 1870, only 5 percent of African American farmers owned their land; in 1900, nearly a quarter had become land owners. Again, it could have been better except for the reversals from President Andrew Johnson. The results in education were also astounding, from Sunday school literacy classes to local schoolhouses to church-sponsored and Black land grant colleges. Black leaders brought a public education system for white and Black children to the South; an appropriate symbol of Reconstruction could very well be the schoolhouse. Voting power also proved effective. The brief period of Reconstruction in the American South produced progressive state constitutions with government services at the state and local level; formerly enslaved people elected Black legislators, judges, and sheriffs. Southern states supported Black militia units for protection. For the first time the South invested in services for its citizens—schools, roads, railroads, prisons, and insane asylums. Tax reform was necessary, but higher taxes were a major problem for many.
But then, if Reconstruction was such a success, how and why did it end so badly, with too few of the achievements kept in place? Why was there a white counter revolution to the successes of Reconstruction? The answer involves the Rule of Law. A successful interracial democracy was too much for white supremacists to accept. To end Reconstruction, they very effectively organized an authoritarian coup d’etat. The Rule of Law ceased to exist for all citizens.
At first President Grant had success enforcing the law against the KKK. In 1873 there were more than 1,200 civil rights prosecutions under the Enforcement Act of 1870 and the Ku Klux Act of 1871. In addition to prosecutions, federal observers ensured honesty at elections. Then the political will dissipated. The presidency no longer used its enforcement powers nor its bully pulpit to stop the lawlessness.
When the Democrats won control of the U.S. House of Representatives in 1874, the first time since the civil war, they were in a position to prevent any new civil rights legislation. Ultimately, they were very successful. In 1888, Republican Representative Henry Cabot Lodge proclaimed, “The Government which made the black man a citizen of the United States is bound to protect him in his rights as a citizen of the United States, and it is a cowardly Government if it does not do it.” Well, it did not.
As the Democrats retook the state houses and legislatures of the Southern states in their counterrevolution of 1876–1877, they made small implemental changes at first—closing poll places, reregistration, times of voting, etc.—until Black citizens and their smaller number of white allies were effectively eliminated from legislative decision making. By 1890, white supremacists had gained or regained control of the former Confederate states, and the Democratic Party had become dominant in state government. With legal and governmental machinery now in their hands, they were determined to completely strip African Americans of the opportunities they earned during Reconstruction, drive them from public life, and restore as much of slavery’s caste system as might be allowed. Former slaveholding elite needed to overturn Reconstruction because it was so successful. With no support from the Court to protect the new Constitutional Amendments, the next step was disfranchisement and segregation.
And, as per above, the state, federal, and U.S. Supreme Courts allowed the lawlessness, the disfranchisement, the segregation. The Court showed that federal privileges were pitifully few, that the federal government could not protect even those few privileges, and that if state laws avoided explicit words of discrimination, they would meet little judicial resistance. Laws built to protect the newly freed people were demolished. But far worse was about to come. African Americans entered the 1890s with no meaningful way to protect their rights. The Court gutted the 14th Amendment, now to protect corporations, not people (80 percent of all cases deal with corporations, not the people to which it was intended to give equal citizenship rights under the law).
And yet, the emancipatory fervor unleashed after 1865 was never entirely quashed, and ever since these two Americas have done battle against one another. And isn’t that what we are still discussing today with this essay?
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