Did we have a Constitutional Revolution but not reconstruct the South? (April 2023)
Revolution (n) "a forcible overthrow of a government or social order, in favor of a new system."
How many constitutional revolutions has America experienced? Certainly all agree on the first. Was there another constitutional revolution after the Civil War with Reconstruction? Did Reconstruction actually accomplish the goals it was intended for, or do "old habits die hard?" We posed these questions to a group of scholars to get their takes. Read on as the conversation unfolds in this month's Liberty Matters.
Evaluating the impact of Reconstruction and its Constitutional Amendments is complex. The three decades after the Civil War were a tumultuous time for the American South with several major twists and turns. Identifying the successes and failures of this period necessitates an overview of the sequence of events. The history is not as simple as sometimes portrayed.
The ratification of the Thirteenth Amendment in December 1865 fully emancipated all slaves within the nation. It took place during a period referred to as Presidential Reconstruction, initiated by Abraham Lincoln before the war ended, but now under the lenient policies of President Andrew Johnson. Congress, which was then just reconvening, confronted functioning governments in ten out of the eleven former Confederate states. All but two of the ten had contributed to the final ratification of the Thirteenth Amendment, although the Republican controlled Congress was refusing to seat representatives from any of these states. Their governments were riddled with former Confederate officials, and presidential pardons had enabled former plantation owners to recover nearly all their lands confiscated or abandoned during the war. Nowhere could former slaves vote, and new Black Codes imposed a severe racial subjugation that—while varying from state to state—generally denied African Americans the right to bear arms, assemble after sunset, and practice certain professions, while often subjecting them to imprisonment or forced labor if they were idle or unemployed.
What followed was a struggle between Congress and President Johnson. Congress passed two civil rights acts over his veto and proposed a Fourteenth Amendment that would enshrine those rights into the Constitution. But not until 1867, nearly two years after hostilities had ceased, did Congress initiate a new Reconstruction policy that would actually enforce those rights. All the state governments that Johnson had recognized were dissolved, except for that of Tennessee, which was rewarded for ratifying the Fourteenth Amendment. The remainder of the former Confederacy was divided into five military districts. The vote was taken away from ex-Confederates and given to southern African Americans. New governments were established under military supervision, and only after the new governments ratified the proposed Fourteenth Amendment did Congress promise to restore them to their former status within the Union.
Under Congressional (or Radical) Reconstruction, a growing southern Republican party united enfranchised former slaves with both southern whites who were poor or former Unionists and idealistic Northerners who had moved South to help modernize the region and assist the freedmen and women. This Republican coalition initially dominated most of the reconstructed state governments. African Americans filled many elected posts throughout the former Confederacy. In addition to numbering two U.S. Senators, they were the majority in one house of the South Carolina legislature. But nowhere did blacks hold offices in proportion to their numbers, despite constituting a majority of the electorate in three states. New state constitutions eliminated archaic and undemocratic features, and several states revised their penal codes to make them less barbaric. These governments also initiated expenditures for internal improvements, public education, and other social services, such as orphanages, insane asylums, and homes for the poor. By the time Ulysses Grant was elected to the presidency in 1868, seven southern states had already complied with the terms of Congressional Reconstruction and been readmitted to the Union. Their ratifications of the Fourteenth Amendment are what formally made it part of the Constitution.
The Radical Republicans in Congress meanwhile had enough momentum to go for one goal that they had been unable to add to the Fourteenth Amendment: making African American suffrage permanent and nationwide. The proposed Fifteenth Amendment’s wording prohibited any denial or abridgment of the right to vote “by the United States or any State on account of race, color, or previous condition of servitude.” The Republican majority in Congress then proffered a deal to the three remaining holdout southern states. It would allow ex-Confederate officials from these jurisdictions to cast ballots and hold office if the states would ratify the proposed amendment. Virginia, Mississippi, and Texas accepted the terms. As the Fifteenth Amendment became official in March 1870, these last states regained their representation in Congress.
But resistance from white Southerners to what they denounced as Black Reconstruction had turned violent. The Ku Klux Klan was already active in the 1868 presidential election. The resulting atrocities—including tortures, murders, rapes, arson, and beatings—not just against African Americans but also sometimes against white Southerners who supported the Republican Party, denounced as “Scalawags,” and transplanted Northerners, labelled “Carpetbaggers,” are too well-known and extensive to recount. The Grant Administration passed three successive force acts, each giving Union military commanders greater power to suppress the violence. These measures achieved some temporary success against the Klan, which officially disbanded in 1869, but other paramilitary and vigilante groups soon took its place.
Northerners ultimately grew weary of the expense and frustration of what some self-styled Liberal Republicans were now openly admitting was “bayonet rule.” The Amnesty Act of 1872 restored the political rights of all but a few former Confederates. The same year the Freedmen’s Bureau, which had been established under the War Department just before the war ended to become the first major federal relief agency aiding the former slaves, was allowed to pass out of existence. The national government had effectively turned its back as white Southerners engaged in a process euphemistically called Redemption. Continuing physical intimidation—coupled with economic pressures—kept blacks away from the polls, forced whites out of Republican ranks, and drove former Northerners back North. The Redeemers overturned Republican rule in state after state, instituting a regimen of government retrenchment, economy, and partial debt repudiation.
By the end of Grant’s term, only South Carolina, Florida, and Louisiana were left in Republican hands. Redemption also contributed to a nationwide resurgence of the Democratic Party, which was reforging the alliance between the South and urban immigrants in the North. This led to the disputed presidential election of 1876. The Republican candidate, Rutherford B. Hayes, was also burdened by an economic depression and his party’s notorious political scandals of the Grant era. Democratic candidate Samuel J. Tilden thus won a majority of the popular vote. But the electoral votes in the three unredeemed southern states, along with one electoral vote from Oregon, were disputed—and the Democrats needed only one of them to put Tilden into the White House. The country faced a full-fledged electoral crisis, in which the Democrats darkly hinted at armed resistance to what they feared would become a Republican military coup. But intricate back-room maneuvering that lasted until two days before inauguration gave the Republicans all the disputed electors. In return, Hays agreed to remove the last federal troops from the South and to support bountiful government subsidies for southern railroads in what has become known as the Compromise of 1877.
However that was not quite the end of the story. Although the Redeemers manipulated votes with intimidation, poll taxes—and later the Australian, or secret, ballot—African Americans in the South still successfully went to the polls in large numbers. Within the majority of southern states, the only form of discrimination legally imposed on private institutions applied to passenger trains. Social segregation was of course pervasive, and public schools were racially segregated, but that had been the case even throughout Congressional Reconstruction, except briefly in New Orleans. Not until the 1900s, more than a decade after the disputed election, did most of the infamous Jim Crow laws become widespread—mandating segregation in railway stations, street cars, workplaces, hotels, and other public facilities. The first southern state to effectively disfranchise the majority of African Americans was Mississippi, in 1890, with a literacy test. Louisiana did not do so until 1898, and then North Carolina, Alabama, Virginia, and Georgia stepped in line, with Texas last in 1908. Now that the public schools first created during Congressional Reconstruction had been captured by the forces of white rule, spending on black pupils compared with white pupils steadily declined.
Why this new wave of racist measures? One factor was that advocates of the country’s latest statist reform movement, Progressivism, with their frequent embrace of eugenics, generally supported these changes. One striking manifestation of Progressive support for Jim Crow was when Woodrow Wilson, soon after his election to the presidency in 1912, segregated the federal workforce and instituted discrimination in federal employment. The Spanish–American War of 1898 was another source of heightened racism. In the Plessy v. Ferguson case of 1896, the Supreme Court, with only one dissenter, upheld a Louisiana law mandating segregation so long as facilities were “separate but equal.” Southern Democrats had also been alarmed at the growing alliance between southern Populists and Republicans, which threatened to bring about a coalition of blacks and poor whites similar to that during early Congressional Reconstruction. The new voting restrictions likewise disfranchised many poor whites, thereby creating the Solid-Democratic South that would reign for the next half century.
But despite these political setbacks, southern blacks had still achieved major economic gains. One must not underestimate the immense benefits of emancipation itself. The total value of all slaves as of 1860 is estimated at between $2.7 and $3.7 billion, making it one of largest capital assets in the U.S. at the time. Emancipation returned all this human capital from slaveholders to the freed slaves. Although facing onerous legal and social disabilities, the former slaves took more leisure. Women and children abandoned the fields and the elderly were no longer required to work, whereas males gained more control over their labor input. The economic fortunes of the ex-slaves were bound within a region that remained the country’s poorest, yet their real incomes increased. By 1879 the average agricultural income of southern African Americans had risen by at least 45 percent, or still more if one attaches a dollar value to their added leisure. Even with Reconstruction’s failure to redistribute large plantations to the former slaves, African Americans had purchased 10 percent of the South’s agricultural land, at a time when many white farmers had lost title due to the heavy state taxes imposed by the Reconstruction regimes. To be sure, southern blacks remained relatively poor, with per capita income below that of the region’s white population. But not merely were African Americans accumulating real estate and other forms of wealth, their real incomes rose at a rate of 2.7 percent per year—faster than that of white income—more than doubling by the time of Jim Crow.
 This overview of Reconstruction is now fairly standard in most general accounts of the period. Kenneth M. Stampp’s still reliable The Era of Reconstruction: 1865–1877 (New York: Alfred A. Knopf, 1965) was one of the first works to overturn the older “Dunning School” interpretation that excoriated the state governments that came to be power during Congressional Reconstruction, alleging that a triumvirate of illiterate backs, Scalawags, and Carpetbaggers indulged in an orgy of extravagance and corruption. A later and more comprehensive survey that, in addition, covers contemporaneous events in the North is Eric Foner’s Reconstruction: America’s Unfinished Revolution, 1863–1877 (New York: Harper & Row, 1988), an updated edition of which was published in 2014. Many other fine works are available, some going into detail about specific aspects of Reconstruction, but none has significantly altered the interpretation of this period.
 The classic work that first called attention to the late origins of Jim Crow legislation, the first edition of which was published in 1955, is C. Vann Woodward’s The Strange Career of Jim Crow, 3rd edn. (New York: Oxford University Press, 1974). Two works that cover suffrage restrictions are Morgan Kousser’s The Shaping of Southern Politics: Suffrage Restrictions and the Establishment of a One-Party South (New Haven: Yale University Press, 1974) and Michael Perlman’s Struggle for Mastery: Disfranchisement in the South, 1888–1908 (Chapel Hill: University of North Carolina Press, 2001).
 On the role of Progressives, see David W. Southern’s The Malignant Heritage: Yankee Progressives and the Negro Question, 1901–1914 (Chicago: Loyola University Press, 1968); Southern. The Progressive Era and Race: Reform and Reaction, 1900–1917 (New York: Harlan Davidson, 2005); and William L. Anderson and David Kiriazis’s “Rents and Race: Legacies of Progressive Policies,” Independent Review, 18 (2013): 115–133.
 Kenneth Ng and Nancy Virts’s “The Value of Freedom,” Journal of Economic History, 49 (December 1989): 938-965; Roger L. Ransom and Richard Sutch’s One Kind of Freedom: The Economic Consequences of Emancipation (Cambridge: Cambridge University Press, 1977), pp. 3-7; Richard Vedder, Lowell Gallaway, and David C. Klingman’s “Black Exploitation and White Benefits: The Civil War Income Revolution” in The Wealth of Races: The Present Value of Benefits from Past Injustices, ed. by Richard F. America (Westport, CT: Greenwood Press, 1990): 125-137; Robert Higgs’s Competition and Coercion: Blacks in the American Economy, 1865–1914 (Cambridge: Cambridge University Press, 1977); Higgs’s “Accumulation of Property by Southern Blacks Before World War I,” American Economic Review, 72 (Sep 1982), 725–35; and Robert A. Margo’s “Accumulation of Property by Southern Blacks Before World War One: Comment and Further Evidence,” ibid., 74 (September 1984), 777–781.
Jeffrey Rogers Hummel is retired and a professor emeritus in the economics department at San Jose State University and has taught both history and economics. He is the author of Emancipating Slaves, Enslaving Free Men: A History of the American Civil War ( 2013). His articles and reviews have appeared in the Journal of Economic History, Econ Journal Watch, the Texas Law Review, the Independent Review, the International Philosophical Quarterly, the Chapman Law Review, and such popular publications as the Wall Street Journal, Forbes.com, Investor’s Business Daily, and The Freeman. At Liberty Fund’s Library of Economics and Liberty, he’s published several articles including “U.S. Slavery and Economic Thought” and “Benefits of the American Revolution: An Exploration of Positive Externalities.” He has also contributed to such volumes as Boom and Bust Banking (David Beckworth, ed.), Government and the American Economy (Price Fishback, ed.), the Encyclopedia of American Business History and Biography, Reassessing the Presidency (John V. Denson, ed.), and Arms, Politics, and the Economy (Robert Higgs, ed.).
Orville Vernon Burton is the Judge Matthew J. Perry Distinguished Chair of History and Professor of Global Black Studies, Sociology and Anthropology, and Computer Science at Clemson University. Burton taught for 34 years at the University of Illinois, where he is emeritus University Distinguished Teacher/Scholar and Professor of History, African American Studies, and Sociology. His research and teaching interests are American history, with a particular focus on race relations and community. He has served as president of the Southern Historical Association and of the Agricultural History Society. Burton is a prolific and prize-winning author and scholar (more than twenty books and nearly three hundred articles). The Age of Lincoln (2007) won the Chicago Tribune Heartland Literary Award for Nonfiction and was selected for Book of the Month Club, History Book Club, and Military Book Club. One reviewer proclaimed, “If the Civil War era was America's ‘Iliad,’ then historian Orville Vernon Burton is our latest Homer.” His co-authored Justice Deferred: Race and the Supreme Court (2021) was deemed “authoritative and highly readable” by reviewer Randall Kennedy of Harvard University Law School in The Nation. In 2022 he was appointed to the South Carolina African American Heritage Commission, inducted into the Martin Luther King Jr. Collegium of Scholars at Morehouse College, and received the Southern Historical Association’s John Hope Franklin Lifetime Achievement Award.
Nicole Etcheson is Alexander M. Bracken Professor of History at Ball State University. She is the author of three books: A Generation at War: The Civil War Era in a Northern Community (which won the 2012 Avery O. Craven Award from the Organization of American Historians for the most original book on the coming of the Civil War, the Civil War era, or Reconstruction, excepting works of purely military history); Bleeding Kansas: Contested Liberty in the Civil War Era (2004); and The Emerging Midwest: Upland Southerners and the Political Culture of the Old Northwest, 1787-1861 (1996). She is the recipient of the 2018 Frederick Jackson Turner Award for Lifetime Contributions to Midwestern History from the Midwestern History Association. She is currently working on a project about suffrage in the post-Civil War era.
Erec Smith is an Associate Professor of Rhetoric at York College of Pennsylvania. Although he has eclectic scholarly interests, his primary work focuses on the rhetorics of anti-racist activism, theory, and pedagogy as well as the role of rhetoric in a free, pluralistic, and civil society. He is a co-founder of Free Black Thought, a nonprofit dedicated to highlighting viewpoint diversity within the black communities. Smith is the author or A Critique of Anti-Racism in Rhetoric and Composition: The Semblance of Empowerment (2020), a book in which he scrutinizes contemporary modes of anti-racism in his field. Smith is an advisor for both the Foundation Against Intolerance and Racism and Counterweight, an organization that advocates for classical liberal concepts of social justice. In 2023, he is a Visiting Scholar for the Cato Institute.
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