Reconstruction and Constitutional Revolution: The Conversation

The Conversation

Jeffrey Hummel, Reconstruction’s Failure

Vernon Burton, Response to Three Scholars’ Essays Answering “Did we have a Constitutional Revolution but not Reconstruct the South?”

Nicole Etcheson, Confronting Our Racial Past

Erec Smith, “We the People” are Responsible for Upholding the Constitution

Jeffrey Hummel, Reconstruction’s Failure

It goes almost without saying that Congressional Reconstruction did not secure full justice, security, or political equality for African-Americans. All the participants in this discussion are in agreement about that. Given our differing perspectives, we may disagree somewhat about the extent or significance of the genuine gains made by the freed men and women. But Reconstruction was not even able to sustain the goals of its most radical proponents at the time. I therefore would like to explore some sources of Reconstruction’s failure. The underlying source was, of course, continuing and pervasive racial prejudice. Yet we can go deeper to examine particular policies, some seemingly unrelated to Reconstruction but others closely associated with it, that contributed to its failure. One of these involves a reform that, if implemented, would have significantly helped the former slaves. The others involve measures that undercut, either directly or indirectly, the success of Reconstruction.

Forty Acres and a Mule

The Union’s treatment of abandoned and confiscated lands in the former Confederacy constitutes a major lost opportunity. As early as 1862, well before the Civil War ended, plantation owners were fleeing and abandoning their lands and slaves, most notably in the South Carolina Sea Islands. There the slaves, even before full Union military occupation, began farming self-surveyed plots, and the area then attracted refugee slaves from elsewhere. With the arrival of Sherman’s army in January 1865 and his issue of Special Field Order No. 15, 400,000 acres of abandoned coastal plantations were set aside for the exclusive settlement of ex-slaves. Two months later Congress established the Bureau of Refugees, Freedmen, and Abandoned Land (Freedmen’s Bureau) to assist with the transition from slavery to freedom. Congress also had already passed two Confiscation Acts in 1861 and 1862, forfeiting the property and slaves of those supporting the rebellion, thus putting additional acres into Federal hands.[1]

Once President Johnson began granting amnesty to former Confederates, however, many ex-slaveholders recovered their abandoned plantations. Eventually the Freedman’s Bureau was reduced to implementing a paternalistic policy of compelling former slaves to work, for wages and under supervised conditions to be sure, but on plantations owned by white Southerners or leased to Northerners. In the end, only a small number of freedmen hung on to their land through purchasing it. Although the Republican Party dominated Congress, the problem was that it was divided into three factions: a very few conservative Republicans who supported Johnson; moderate Republicans, the largest faction, who opposed Johnson but shied from fully equal rights for blacks: and the Radical Republicans, the most outspoken of whom was the Pennsylvania Congressman Thaddeus Stevens. “Forty acres and a mule“ for each adult freedman became his rallying cry. But not even all the Radicals favored wholesale redistribution of southern land. In 1866, Congress did pass a bill that applied the homestead principle to 44 million acres of federal lands in the South, with former slaves and pro-Union whites getting preferential access. Yet most of this land was of poor quality and at distant locations.[2]

Many Northerners remained opposed to breaking up slaveholder plantations, seeing it as a violation of private property. But Stevens was not advocating land redistribution as a leveling measure to bring about greater equality. He instead employed a natural-rights argument, insisting that the former slaves had rightful title to their masters’ plantations as just restitution for their coerced labor. Even the former slaves who desired land were not, as Eric Foner reveals, challenging “the notion of private property per se; rather, they viewed the accumulated property of the planters as having been illegitimately acquired.” Stevens believed that land reform was essential to transform the feudal South into a region of yeoman farmers and free laborers. While his scheme, if adopted, may not have prevented the restoration of white rule, it certainly would have made a difference on the margin. Even the limited experience with land ownership in the Sea Islands created a black community noted for its self-sufficiency, independence, and resilience well into the post-Reconstruction period.[3]

Counterproductive Policies at the State Level

Another set of policies contributing to Reconstruction’s failure were actually some of the vaunted accomplishments of the Republican state governments that came to power in the South. As mentioned in my previous essay, these governments initiated increased funding of internal improvements, primarily railroad construction. The resulting subsidies were among the largest of the new state expenditures, diverting resources away from more urgent needs. Poor farmers, already destitute from wartime losses, found themselves levied upon further by their own states to provide economic tribute to privileged businesses. The reckless extent of these appropriations, moreover, was the occasion of most of the actual political fraud below the Mason-Dixon line during the period.[4]

Reconstruction’s importation of the Yankee system of tax-supported compulsory schools also entailed increased expenditures. This innovation had not even become standard throughout the northern states until the last decade before the Civil War, promoted by the northern Whig party partly to mold social conformity and instill “proper” respect for authority among Catholic immigrants and other ethnic outsiders. Literacy among white Southerners already exceeded 80 percent even before Fort Sumter, slightly below that of Northerners but better than in Britain or any other European country outside of Sweden and Denmark. Admittedly this omits the slaves, whom it was illegal to educate. After emancipation the former slaves hungered for learning, and during Reconstruction many Northerners volunteered their services or donated money to provide education, usually through the auspices of the Freedmen's bureau.[5]

To help ensure that government schools were permanently fastened upon the South, Congress created a federal Department of Education in 1867, downgraded the next year to a bureau within the Interior Department. By 1872 every southern state had established a school system, and generally these were more centrally administered than in the North, where local districts played a larger role. As mentioned in my previous essay, the public schools created during Congressional Reconstruction were all racially segregated except briefly in New Orleans. Not only did these schools, with the return of white rule, create a mechanism for racial exploitation, in which the taxes of poor blacks helped pay for white education, but also their educational accomplishments were hardly impressive. Fifteen years after the war ended, the literacy rate among southern whites had shown no noticeable gain, and 70 percent of southern blacks still could not read.[6]

Many of the other new state-level functions that my previous essay covered were also costly. As a result, the war-ravaged South suffered under some of the heaviest state and local taxation in proportion to wealth in U.S. history. Tax rates in 1870 were three or four times what they had been in 1860, even though property values had declined significantly. Many whites who had not lost their land already were forced into bankruptcy. At one point, 15 percent of all taxable land in Mississippi was up for sale because of tax defaults. Coming on the heels of wartime confiscations, Radical Reconstruction foisted upon the biracial South the worst of two worlds: significant turbulence in white land titles with little compensating distribution to African-Americans.  Moreover, the fiscal burden of these measures helped galvanize resistance to Reconstruction and undermined the southern Republican Party’s promising alliance between poor whites and blacks. Thus it is no surprise that the demise of the Republican state governments ushered in programs of government economy, expenditure cuts, and partial repudiation of state debts.[7]

Federal Policies that Impinged on the Defeated South

A third set of policies contributing to Reconstruction’s failure was imposed by the national government. In order to finance the war toward its beginning, Congress had imposed a tax of $20 million on real estate, to be administered through the states. After the war, the tax was levied against the rebellious states, with a 50 percent penalty for their failure to collect it themselves. Special federal tax commissioners assessed the real property of Southerners, selling the land of those unable to pay and keeping all the proceeds—not just the amount due. Although this brought more land into federal hands that in theory could have been sold to the former slaves, and a bit of it actually was, the tax mainly ended up as a further economic burden contributing to the insecurity of land titles. At the same time a particularly onerous increase in the federal excise tax on cotton extracted another $68 million from the South before being repealed in 1868.[8]

The Civil War had already been economically devastating for the South. Prior to the war, output per person in the slave states was at least one-fourth below that in the free states—if you include slaves as part of the population.  (If you exclude the third of the population that was enslaved, estimates vary, with per capita income of the slave states being just slightly higher or slightly lower than that in the free states.) After the war, the South’s total commodity output did not return to its 1860 level until two decades later, and since population had also risen, output per person, including the former slaves, was still 20 percent below its prewar levels.[9] Yet despite the fact that Southerners had lost between $1 and $1.5 billion from property destroyed during the war, economic historians have long agreed that this loss alone cannot explain the persistence of the increased income gap between North and South.[10]

Economic historians have identified several other factors to explain the slow recovery of southern output, and one of those was emancipation itself. With the former slaves now free, they consumed more leisure, with their labor input declining by approximately one-third.[11] This gain in black leisure, however, also does not fully account for the prolonged decline in southern income.  Another major factor was some of the policies that Vernon Burton refers to in his essay as “national Reconstruction.” To begin with, northern Republicans took advantage of the war to overturn the prewar policy of relative free trade by jacking up tariff rates. Average duties rose from 20 to 46 percent, and the free list was cut in half. Because the southern economy continued to rely heavily on agricultural exports, which depended on imports, the burden of this catering to special interests fell most heavily on the sector of the southern economy where most African-Americans worked. The South did not recover its world market share of cotton exports until the 1880s.[12]

Some historians have also put the blame on the new arrangement that came to dominate cotton growing: sharecropping. Southern manufacturing recovered much more rapidly than agriculture, and the states of the deep South, where cotton cultivation predominated, remained the region’s poorest. Sharecropping also became common among white farmers who had lost their land. Economic historians have engaged in an extended debate over the relative efficiency of sharecropping, and at least some of the more extreme economic critiques of this arrangement have been discredited. It did have the advantage of pooling risk. Yet sharing the crop still appears inferior to either hiring wage labor or renting land outright. Under those systems, either the land owner or the renter retains the gains from increased output, whereas under sharecropping each party gets only a predetermined share (usually around one half), thereby reducing incentives to produce more or make investments that would increase productivity. The former slaves however were resolute in their efforts to avoid wage labor in the fields due to its similarity to the gang labor on plantations. This is one reason why large plantations almost never survived emancipation, even in the West Indies and South America.[13]

Nonetheless a well-developed financial system might have permitted poor farmers to buy or rent land. But Union financial legislation passed during and after the war was riddled with features that interdicted the flow of savings to agriculture. The National Currency Acts of 1863 and 1864 created a new network of national chartered banks, which were required to hold specified quantities of Treasury securities. In exchange they could issue bank notes as currency, while the pre-existing state banks were no longer able to do so because of a prohibitive federal tax on their notes. Moreover, national banks could not legally make real-estate loans at all, while the general prohibition on branch banking, both at the national and state level, made it more difficult to shift credit from areas where interest rates were low to where the demand was the greatest. High capital requirements for national bank charters and initial ceilings on the quantity of bank notes also discriminated against the South. After the ceilings were removed, the requirement that national bank notes be matched by investments in government debt still diverted savings away from other uses and made it less profitable to issue these notes where interest rates were highest.[14]

State chartered banks could still offer loans in the form of deposits, but modern readers often fail to appreciate how the widespread use of checking accounts today depends upon advanced technologies of credit verification. During the nineteenth century, the privilege of writing a check against a bank was confined to individuals of recognized wealth or unquestioned probity. The poor or undistinguished had to borrow currency, commodities, or nothing at all.  The National Banking System contributed to starving the agricultural South not only of credit but also of cash in small denominations. Only silver coins were suitable for small transactions, but wartime inflation had driven them into hoards, reducing their total circulation to one-fourth their prewar level. The lowest denomination permitted for national bank notes was $1 (equivalent to about $20 today, during a period when real income per person was about 5 percent of what it is today). Although the government’s paper money (Greenbacks) was printed in lower denominations, the Treasury contracted its total circulation during Reconstruction.[15]

This government-induced curtailment of the South’s monetary system occurred just at the moment when the South’s monetary needs had leapt upward. The slave plantation had been a mini-planned economy, within which food, clothing, and other resources were allocated through the planter’s central direction. Upon emancipation most former slaves depended on the market for the first time, now having to purchase their own necessities. Sharecropping, however, was basically a barter transaction—cotton exchanged for the use of land—and even farmers who rented land often paid not “cash rent” but “standing rent” in the form of crops. Croppers and renters also relied almost entirely upon credit from country stores for food, clothing, and agricultural supplies, with crops pledged as security. Markups for the store’s commodity credit were between 30 and 70 percent annually, whereas in cities only 50 to 100 miles away, interest rates were one-fifth of that. The South’s urban and manufacturing centers fared better because they had higher concentrations of wealth to begin with and because, despite the ban on private mints, individuals had access to various forms of substitute currency illegally issued by municipalities and private firms.[16]

In short, the National Banking System throttled both financial intermediation and monetary exchange in the South’s agricultural sector, which in large part had been reduced to inefficient barter transactions. This financial impact was evident, to a lesser extent, even in northern agriculture. More national bank notes circulated in postwar Connecticut than in Michigan, Wisconsin, Iowa, Minnesota, Kansas, Missouri, Kentucky, and Tennessee combined. Major differentials among regional interest rates that had not existed before the war emerged. The discount rate on commercial paper in the 1890s ranged from less than 4 percent in Boston to 10 percent in Denver. This helped fuel political crusades for inflationary policies, either through printing Greenbacks or coining silver.[17]

Overall the national government’s spending, even after the heavy wartime expenditures had ceased, was twice as high as a percent of GDP as it had been prior to the war. Some of this increase involved lavish subsidies to railroads, with its associated scandals, and other pork-barrel legislation, reflecting the government’s neo-mercantilist coalition with business. But by the mid-1870s the largest expenditure was interest alone on the postwar national debt, which commanded about 40 percent of government outlays. As the national debt declined, it was replaced in 1884 by veterans’ benefits as the federal government’s largest expenditure, constituting 29 percent of federal outlays. Since few in the defeated South received either of these two payments, their net fiscal impact was to extract revenue from the nation’s poorest region, with its large population of African-Americans, for transfer to the North.[18]


If these three forms of detrimental economic policies—the failure of land restitution, the heavy taxation of the state-level Reconstruction governments, and the national government’s exploitation of the South and misguided monetary changes—had been different, a beneficial change in all three together might still not have made Reconstruction a total success. The Redeemer governments might still have restored white rule, and Jim Crow laws might still have been imposed in the 1890s. But any salutary alteration of these policies certainly would have made the freed men and women better off economically. And that in turn may have given them greater political leverage. The fact that southern blacks, despite the hindering impact of these policies, nevertheless achieved the major economic gains emphasized at the end of my prior essay, is a testament to their endurance and resilience. It also suggests that the market tended to do much better by African-Americans than government at any level after the Civil War.

[1] Willie Lee Rose, Rehearsal for Reconstruction: The Port Royal Experiment (New York: Oxford University Press, 1976); George R. Bently, A History of the Freedman’s Bureau (Philadelphia: University Pennsylvania Press, 1955); William S. McFeely, Yankee Stepfather: General O. O. Howard and the Freedmen (New Haven: Yale University Press, 1968).

[2] Claude F. Oubre, Forty Acres and a Mule: The Freedman’s Bureau and Black Land Ownership (Baton Rouge: Louisiana State University Press, 1978).

[3] Eric Foner, Nothing but Freedom: Emancipation and Its Legacy (Baton Rouge: Louisiana State University Press, 1978), p. 56.

[4] Carter Goodrich, Government Promotion of American Canals and Railroads (New York: Columbia University Press, 1960), ch. 4; John F. Stover, The Railroads of the South, 1865-1900: A Study of Finance and Control (Chapel Hill: University of North Carolina Press, 1955); Mark Wahlgren Summers, Railroads, Reconstruction, and the Gospel of Prosperity: Aid Under the Radical Reconstruction, 1865-1877 (Princeton: Princeton University Press, 1984).

[5] James D. Anderson, The Education of Blacks in the South, 1860-1935 (Chapel Hill: University of North Carolina Press, 1988); Ronald E. Butchart, Northern Schools, Southern Blacks, and Reconstruction: Freedman’s Education, 1862-1875 (Westport, CT: Greenwood Press, 1980); Robert C. Morris, Reading, ‘Riting, and Reconstruction: The Education of the Freedmen (Chicago: University of Chicago Press, 1981); Albert Fishlow, “The American Common School Revival: Fact or Fancy?” in Industrialization in Two Systems, ed. by Henry Rosovksy (New York: John Wiley & Sons, 1966), and Fishlow, “Levels of Nineteenth-Century American Investment in Education,” Journal of Economic History, 26 (Dec 1977): 418-436.

[6] Donald R. Warren, To Enforce Education: The History of the Founding of the Office of Education (Detroit: Wayne State University Press, 1974); Charles William Dabney, Universal Education in the South, v. 1, From the Beginning to 1900 (Chapel Hill: University of North Carolina Press, 1980); William Preston Vaughn, Schools for All: The Blacks and Public Education in the South, 1865-1877 (Lexington: University Press of Kentucky, 1974); Robert A. Margo, Race and Schooling in the South, 1880-1950 (Chicago: University of Chicago Press, 1990).

[7] J. Mills Thornton, “Fiscal Policy and the Failure of Radical Reconstruction in the Lower South,” in Region, Race and Reconstruction: Essays in Honor of C. Vann Woodward, ed. by J. Morgan Kousser and James M. McPherson (New York: Oxford University Press, 1982).

[8] Harry Edwin Smith, The United States Federal Internal Tax History from 1861 to 1871 (Boston: Houghton, Mifflin, 1914).

[9] Richard A. Easterlin, “Interregional Differences in Per Capita Income, Population, and Total Income, 1840–1950,” in National Bureau of Economic Research, Trends in the American Economy in the Nineteenth Century, Studies in Income and Wealth Series, v. 24 (Princeton: Princeton University Press, 1960); Easterlin, “Regional Income Trends, 1840–1950,” in Seymour E. Harris, ed., American Economic History (New York: McGraw–Hill, 1961); Robert E. Gallman, “Gross National Product in the United States, 1834–1909,” in National Bureau of Economic Research, Output, Employment and Productivity in the United States After 1800, Studies in Income and Wealth Series, v. 30 (New York: Columbia University Press, 1966); Robert E. Gallman, “Commodity Output, 1839–1899,” in National Bureau of Economic Research, Trends in the American Economy in the Nineteenth Century; Stanley L. Engerman, “The Economic Impact of the Civil War,” Explorations in Entrepreneurial History, 2nd ser., 3 (Spring/Summer 1966), 176–99; Engerman, “Some Economic Factors in Southern Backwardness in the Nineteenth Century,” Essays in Regional Economics, ed. by in John F. Kain and John R. Meyer (Cambridge, MA: Harvard University Press, 1971); Jeffrey Rogers Hummel, Deadweight Loss and the American Civil War: The Political Economy of Slavery, Secession, and Emancipation (2012), ch. 7: SSRN:

[10] Claudia Dale Goldin and Frank D. Lewis, “The Economic Cost of the American Civil War: Estimates and Implications,” Journal of Economic History, 35 (Jun 1975), 299–322; James L Sellers, “The Economic Incidence of the Civil War in the South,” Mississippi Valley Historical Review, 14 (Sep 1927), 179–91; Donald F. Gordon and Gary M. Walton, “A Theory of Regenerative Growth and the Experience of Post–World War II West Germany,” in Explorations in the New Economic History: Essays in Honor of Douglass C. North, ed. by Roger L. Ransom, Richard Sutch, and Walton (New York: Academic Press, 1982).

[11] Roger L. Ransom and Richard Sutch, One Kind of Freedom: The Economic Consequences of Emancipation (Cambridge, UK: Cambridge University Press, 1977).

[12] Frank W. Taussig, The Tariff History of the United States. 8th edn. (New York: G. P. Putnam’s Sons, 1931); Herbert Ronald Ferleger, David A. Wells and the American Revenue System, 1865-1870 (New York: Edward Brothers, 1942).

[13] Ransom and Sutch, One Kind of Freedom; Joseph D. Reid, Jr., “Sharecropping as an Understandable Market Response: The Postbellum South,” Journal of Economic History, 33 (Mar 1973), 106–130; Stephen J. DeCanio, Agriculture in the Postbellum South: The Economics of Production and Supply (Cambridge, MA: MIT Press, 1974); Lee J. Alston and Robert Higgs, “Contractual Mix in Southern Agriculture Since the Civil War: Facts, Hypothesis and Tests,” Journal of Economic History, 42 (Jun 1982), 327–353.

[14] John A. James, Money and Capital Markets in Postbellum America (Princeton, NJ: Princeton University Press, 1978); Richard E. Sylla, “The United States 1863–1913,” in Banking and Economic Development: Some Lessons of History, ed. by Rondo Cameron (New York: Oxford University Press, 1972); Bruce W. Hetherington, “Bank Entry and the Low Issue of National Bank Notes: A Re–examination,” Journal of Economic History, 50 (Sep 1990), 669–675; Richard H. Timberlake, Jr., Monetary Policy in the United States: An Intellectual and Institutional History (Chicago: University of Chicago Press, 1993), p. 434.

[15] Davis R. Dewey, “Banking in the South,” from v. 6 of The South in the Building of the Nation . . . (Richmond: Southern Historical Publication Society, 1909); Richard H. Timberlake, Jr., The Origins of Central Banking in the United States (Cambridge, MA: Harvard University Press, 1978), ch. 9; Sui–ki Leung, “Money Scarcity and the Cause of the American Free Banking Movement,” unpublished paper (University of South Carolina, Department of Economics, December 1991).

[16] James T. Campen and Anne Mayhew, “The National Banking System and Southern Economic Growth: Evidence from One Southern City, 1870–1900,” Journal of Economic History, 48 (Mar 1988), 127–37; Neil Carothers, Fractional Money: A History of the Small Coins and Fractional Paper Currency of the United States (New York: John Wiley & Sons, 1930).

[17] Lance E. Davis, “The Investment Market, 1870–1914: The Evolution of a National Market,” Journal of Economic History, 25 (Sep 1965), 355–93; Richard Sylla, “Federal Policy, Banking Market Structure and Capital Mobilization in the United States, 1863–1913,” ibid., 29 (Dec 1969), 657–86; Howard Bodenhorn and Hugh Rockoff, “Regional Interest Rates in Antebellum America,” Strategic Factors in Nineteenth Century American Economic History: A Volume to Honor Robert W. Fogel, ed. by Claudia Goldin and Hugh Rockoff, (Chicago: University of Chicago Press, 1992); Hugh Rockoff, “Regional Interest Rates and Bank Failures,” Explorations in Economic History, 14 (Winter 1977), 90–5.

[18] Richard White, Railroaded: The Transcontinentals and the Making of Modern America (New York: W. W. Norton, 2011); Historical Statistics of the United States: Earliest Times to the Present, Millennial edn. (New York: Cambridge University Press (2006), Tables Ea636, Ea641, and Ea643.

Vernon Burton, Response to Three Scholars’ Essays Answering “Did we have a Constitutional Revolution but not Reconstruct the South?”

Errata: In my original essay I stated “Twice before the Civil War New York had voted against allowing Black men the vote.” There were actually three state-wide referenda on Black male suffrage in New York state, in 1846, in 1860, and 1869, and Black suffrage was defeated each time. The 15th Amendment meant that when African Americans moved North they could vote and fairly quickly had a seat at the table, and soon moved into the room where it was happening. In states with competing political parties the Black vote mattered and was courted. While the Civil War itself inspired intense hatred, it also brought extraordinary idealism, especially in race relations. When the Supreme Court (Civil Rights cases of 1883) struck down the Civil Rights Act of 1875, and in 1884 when the Court ruled in Hurtado v. California that the 14th Amendment did not guarantee enforcement of the Bill of Rights, states led by the Midwest passed their own state civil rights statutes: Iowa and Ohio 1884; Illinois, Indiana, Michigan, and Nebraska 1885. Pennsylvania did in 1889 as well. Massachusetts and some other northeastern states already had these civil rights statutes. It is no coincidence that the first Black Congressman of the modern era came out of Illinois, as have two Black senators. With the vote and state laws protecting civil rights, Black citizens who migrated from the South benefitted from the 15th Amendment and then led in pushing for laws for the Second Reconstruction.

Burton Response Essay:

I enjoyed and learned from each of these scholars’ three essays. I provide comments and raise questions in the spirit of a community of scholars. I hope that none of my comments or criticisms are taken personally; they are intended only to encourage exchange and academic debate. Thank you for challenging me and giving me an opportunity to react to your exciting essays.

Dr. Jeffrey Hummel states “the history is not as simple as sometimes portrayed.” I agree wholeheartedly. When I wrote The Age of Lincoln (2007), I chose as one of my sources a book recommended by my libertarian brother-in-law. It was Hummel’s Emancipating Slaves, Enslaving Free Men: A History of the American Civil War (1996). I enjoyed and learned from that book, which has an interesting perspective.

The essays in this discussion are understandably more argumentative than a history text. Yet, his article, “Reconstruction’s Twists and Turns,” simply has too many twists and turns of its own. Context and timing of Reconstruction measures are essential in understanding the passage of laws. I am fascinated by Hummel’s wording, transition, and use of active or passive voice.

Hummel writes, “By the end of Grant’s term, only South Carolina, Florida, and Louisiana were left in Republican hands.” I think it is more clear to say that in these three states, where Black men were still able to have a meaningful vote, they and white Republicans elected Republican state legislatures. With the federal government no longer sending supervisors to assure voting rights, with the murder of Republican office-holders, with fraudulent registration and fraudulent ballot boxes, the Democrats, sometimes even a minority, could then control the election outcome.

Hummel writes, “Their (seven southern states) ratifications of the Fourteenth Amendment are what formally made it part of the Constitution.” The implication is that the ratification was not valid. If he thinks it was not fair that the states returning to the union of the United States had to agree that the former slaves were to be citizens, I would like him to clarify the reasoning.

Hummel writes, “But resistance of white Southerners to what they denounced as Black Reconstruction had turned violent.” Hummel had earlier mentioned the Black Codes, but he does not assign them the probative value they are due. In Reconstruction chronology, the Black Codes, instituted in the immediate aftermath of war, were the cause for federal intervention. It was not “Black Reconstruction” that brought white violence; it was violence against the freed people that brought the Reconstruction Act of 1867.

Hummel’s discussion of Progressivism, which apparently was not from the people but was a “statist reform movement,” implies that the movement was the cause of the disenfranchisement and segregation. It was not, although I might agree that Progressivism gave cover to some white southerners. Some tactics also were imported from northern cities to the South. At-large elections, for example, a northern Progressive era strategy to dilute the vote of ethnic minorities, were repurposed in the South to do the same against Black citizens. But again, Progressivism was not the cause. Long before the Progressive era movement white Democrats had been finding innovative ways, including violence, to keep Black people from having an equal opportunity to elect candidates of choice.

Hummel concentrates on eugenics, and this abomination did flourish throughout the U.S., including on the Supreme Court. And I agree with Hummel that the early 1900s did indeed bring on the nadir of America’s race relations. Nevertheless, the argument that eugenics made race relations in the South worse, 1900–1930, than the pre-eugenic era, 1880–1900, is a stretch. Many white southerners did not need eugenics to be convinced of Black biological inferiority. As Winthrop Jordan and a host of other scholars have demonstrated, anti-Black racism long preceded the Progressive era or the eugenics movement. Well before the science of the eugenics movement all mixed race children in the South were considered Black.

I believe Hummel, as do most historians, misses the central, simple question of “Reconstruction”: Why should we think that the war was “over?” That very much depends on what we think the war was about. And for someone interested in understanding how the war “enslaved free men” from what Hummel wrote here he does not appear to be interested in studying that process from below, or thinking about how ordinary Americans contested that new enslavement he suggests. Which is to say that he misses the central achievement of the North’s, that is the United State’s victory: the destruction of slavery as a labor system and the imposition of wage labor capitalism as the dominant system of economic organization of society. As my brilliant former Ph.D. student Dr. Lawrence McDonnell argues in a book he is writing appropriately titled “War Work,” the war itself, of course, was most Americans’ first sustained experience of wage labor or supervision by a boss, and they endured it only in the belief that they were saving the Union. Few could have imagined that their own actions were giving birth to a world so antithetic to ideals of liberty and equality for all.

Hummel does not really explain why he thinks white Southern violence continues after Appomattox—since it does continue in a hundred localities throughout 1865 and beyond. The emergence of the KKK is just the most widespread organized resurgence of planter power. USCT troops draw active violent responses wherever they appeared in the South in the spring and summer of 1865, and it is their attempts to suppress ex-Confederates that spur the political intransigence which solidifies as Black Codes that fall. The war was not over, probably not before 1877 or 78, and later in other locales; violent local political conflicts were the driving force behind the endless “twists and turns” he rightly sees; the 14th and 15th Amendments are intelligible only as attempts to curb both conservative white violence and racist legislation (aimed at controlling white and Black laborers in the South). In a revolutionary period such as “Reconstruction,” what mattered was not what any particular legislative majority managed to enact. Rather, what mattered was the ability of Americans, often armed, to make their claims stick at the local level.

I have known and admired the work of historian Dr. Nicole Etcheson for decades, and as with Dr. Jeff Hummel, I relied on some of her previous work when I wrote The Age of Lincoln. Etcheson offers a good discussion of how federalism was reinterpreted in the post-Civil War period. She and I agree about the role of white violence like the Ku Klux Klan, but I could quibble over the lack of context for passage of the Reconstruction Act. Instead, however, I will focus on the following statement: “the Fifteenth Amendment did not repeal federalism or even assert a positive right of suffrage.” Etcheson shows later in the paper that it was the Supreme Court that stated, “the Constitution of the United States does not confer the right of suffrage upon any one.”

And yet, Section 1 of the Fifteenth Amendment reads, “The right 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.” I maintain that this section does indeed assert a positive right of suffrage. Moreover, as I wrote in my initial essay, “Congress shall have power to enforce” is Section 2 of the 13th, 14th, and 15th Amendments.

I appreciate Etcheson’s explanation of the Enforcement Acts and the role of the Supreme Court in invalidating key portions of those laws. Even more, Etcheson has brought the debate over suffrage to the modern Supreme Court. Its decision in Shelby County v. Holder (2013) invalidated Section 4, and basically rendered Section 5 unconstitutional, as well as key portions of the Voting Rights Act of 1965. I would also add that Brnovich (2021) and the Alabama redistricting cases before the Supreme Court now are taking direct aim at Section 2, which, if the State of Alabama is successful, would basically get rid of the Voting Rights Act.

Etcheson’s essay correctly notes the central role of violence in overturning Black voting rights during Reconstruction, but as with Hummel’s argument, this claim needs to be placed within the larger and longer context of violence waged against Blacks and whites who aimed at land redistribution, access to education, political reform, and labor rights from the spring of 1865 onward. The Klan was opposed to Black voting, but was also opposed to a lot of other things as well—control of land and labor galvanized white paramilitary activity originally (which is why whites were targeted alongside Blacks). Black institutions like churches and schools (and white supporters) were targeted next, and black voting came with the elections in 1868–1878. A Black man in a Union uniform might even be as offensive to KKK types as a Black man with a vote; but I agree with Etcheson that it is the vote that is crucial, and that is the main thing Black people wanted as citizens.

This recognition of Reconstruction violence can also guide us as we interpret the gains of the Civil Rights Movement after 1954. Widespread popular support and victories on particular issues like access to transportation, restaurant facilities, and so forth—that is to say, consumer rights—were won because advocates like SCLC avoided the kinds of labor and land reform that more radical groups—the Communist Party, first and foremost—worked so passionately for in the decades before the Civil Rights Movement supposedly “began.” Which brings us back to the matter of “Lincoln’s Unfinished Work,” that he spoke of in his two greatest speeches, what it might entail in 2023, where it might be taken up, and who will undertake it. The final steps will play out in the halls of Congress, no doubt, but gains enshrined by formal legislation will only be the final product of countless local battles over informal law waged at the community level to achieve something like a common ground of tolerance and understanding.

Which brings us to Erec Smith’s what I believe is an upside-down concern about un-angelic social justice warriors. Until this forum I had not been familiar with the scholarship of Dr. Smith. I appreciate being introduced to Dr. Smith’s work and writings. However, in this essay, I find his beginning a problematic statement. Who are his “social justice advocates”? In America most people, myself most definitely, believe in “liberty and justice for all.” Dr. Smith states that these believers in justice lack “trust in American institutions….” Not so. Most justice advocates ask that the Constitution (and the Declaration of Independence) be followed for all. Advocates ask, for example, that “due process” and “equal protection of the law” apply to all citizens equally.

In his argument about angels and government, Smith sets up a typical straw man fallacy. He makes a pronouncement rather than a historical fact and then demolishes that pronouncement. No one expects that laws can turn people into angels. Abraham Lincoln had a hope that “the mystic chords of memory” will swell in the hearts of the people and they will be “touched…by the better angels of our nature.” It is within the hearts of people who care about others, and not by federal decree.

Smith’s claim that the 13th, 14th, and 15th Amendments were “essentially null and void” once Federal troops pulled out of the South could hardly be more wrong. Moreover, the federal troops did not pull out in 1877, they just quit protecting the Republican elected officials and legislatures, and quit supporting their legitimacy. Of course, white southern counterrevolutionaries swooped in to roll back legislative advances at the state and local level, and lynchers terrorized Black citizens and white allies across the South. But they did not nearly undo all the good that Reconstruction achieved. Within the parameters of Jim Crow, as Mark Schultz and Adrienne Petty have shown in Lincoln’s Unfinished Work, a book I recently co-edited, Black farmers held on to independent landholdings throughout the South (perhaps 20% of all Black farmers by 1900) and reached all sorts of other accommodations with powerful whites to maintain a measure of freedom and independence—even voting in local, state, and federal elections.

Here, again, what mattered was what local communities deemed acceptable, and that informal law needs much greater attention from scholars going forward. In exactly the same way, as novelists like William Faulkner explored in his novels, Robert Warren Penn, and especially Harper Lee brilliantly showed in To Kill a Mockingbird, values of tolerance and acceptance have long been recognized as essential to maintaining a functioning—and Christian—community, regardless of clashing economic interests or personal aesthetics. Without any sort of legal protection for a range of identities and behaviors that deviated from the majority, there has always been an understanding that it is wrong on multiple levels to harm people “like that.” Men and women, then, may never be turned into angels, but they do not require the restraint or the prodding of formal law to make them behave less like devils.

The community itself is more tolerant and perhaps more progressive than Smith allows in his paper. And fiddling with the Constitution may be quite beside the point. As to Smith’s “cultural Marxism,” from the bottom up, conservatives and Marxists agree, men and women wield—and forebear to wield—power in order to create a more perfect Union, according to their own notions of how that might look in practice. Both sides can deplore the recent kerfuffle at Stanford, if from opposite vantage points, and embrace Smith’s call for encouragement of folks seeking common ground. And to his list we ought to add the social realism of warriors like North Carolina’s Rev. William Barber, of the Poor People’s Campaign, and the appeal to civility, common purpose, and simple decency of the mayor of Jackson, Mississippi, Chokwe Lumumba. These are leaders very much in the mold of Frederick Douglass himself.

In these and other arguments, intellectuals (including historians) absolutely must be fair-minded. Let our biases be known. Let our agendas be clear and not used to vilify. I agree with Smith about a very important issue he raises—freedom of speech. Let us continue to use reasoned discourse, even as we agree to disagree.

Nicole Etcheson, Confronting Our Racial Past

I am grateful to Vernon Burton for covering the United States Supreme Court’s role in undoing Reconstruction, an area of discussion that I, pressed by word limits, could not discuss fully. I endorse his statement that “slavery’s death did not automatically confer any positive rights upon African Americans.” He is certainly correct that, ultimately, most white Southerners failed to accept an “interracial democracy” and “organized, very effectively, an authoritarian coup d’etat.”

Burton emphasizes the gains that African Americans did make under Reconstruction: many became land owners, acquired an education, and—albeit briefly—wielded political power. Both he and Jeffrey Rogers Hummel mention the problem of what Hummel characterizes as “heavy state taxes.” But as Burton points out, the Reconstruction state governments were funding public institutions such as schools and prisons (which replaced the coercive penal structure of the plantations) that simply had not existed before the Civil War. Southern Republicans were well known to have invested hopes in economic growth, especially through railroads. Those hopes proved illusory. Democrats, meanwhile, used taxation as a political issue very effectively against Republicans. Michael W. Fitzgerald points out, however, that, even with the sizable increases in southern state taxation during Reconstruction, the rates were “moderate by national standards.” Southerners correctly perceived their taxes as going up, but the perception that tax rates were onerous perhaps had more to do with the very low pre-war rates and opposition to the public services—including schools for African Americans—those new taxes funded.[1]

I am frankly baffled at Hummel’s connection of Reconstruction’s failure to Progressivism and eugenics. One need not wait until the Progressive period to find the racist language and policies of white supremacy. White North Carolinians dubbed their Reconstruction convention “the gorilla convention,” because fifteen of the delegates were African American.[2] When African American men received the vote and women did not, Elizabeth Cady Stanton burst forth with resentment that “Patrick and Sambo and Hans and Yung Tung who do not know the difference between a Monarchy and a Republic, who never read the Declaration of Independence” would make laws for educated white women.[3] Segregation predated Progressivism. Frances Ellen Watkins Harper spoke of Harriet Tubman’s ejection from a segregated car in 1866 when she rebuked white women for their focus on the vote.[4] Progressives presented intelligence and educational tests in voting as reform measures, but in so doing they applied to whites, including immigrants and the poor, as well as African Americans anti-democratic measures that had long been used to justify denying black rights.

Erec Smith defends the Constitution as “a liberal and just document,” while blaming those who have bent the document to the needs of white supremacy. He invokes Frederick Douglass’s defense of the Constitution as a “glorious liberty document.” I certainly do not join with those who see the Constitution, and the Declaration of Independence, as “inherently racist,” but one has to acknowledge their limitations. The framers of the Constitution eschewed the word “slavery,” but accommodated its existence in the three-fifths and fugitive slave clauses. Smith writes that “the Constitution did not fail to protect all of its citizens, those charged to uphold it did.” But the Constitution did not define national citizenship: African Americans were frequently denied passports in the pre-Civil War era and the Dred Scott decision infamously declared that even free-born African Americans were not citizens and “had no rights the white man was bound to respect.” Douglass spoke as he did about the Constitution precisely to counter the abolitionist argument that the Constitution was a proslavery document. Smith states that the Fourteenth and Fifteenth Amendments “were simply ignored” and there is some truth to this, but while Smith would like to blame individuals, I argue that structure matters. I fear it is too easy, using Smith’s formulation, to lose sight of how universal white supremacy was in both the North and South. Simply put, the constitutional structure did not enable the federal government to protect minority rights from majorities that were fundamentally hostile to those rights. The question for us today is how to protect those rights against the remaining forces of white supremacy.

[1] Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper & Row, 1988), 413-14; Michael W. Fitzgerald, Splendid Failure: Postwar Reconstruction in the South (Chicago: Ivan R. Dee, 2007), 154.

[2] Mark Elliott, Color-Blind Justice: Albion Tourgée and the Quest for Racial Equality from the Civil War to Plessy v. Ferguson (New York: Oxford University Press, 2006), 127.

[3] Elizabeth Cady Stanton, “Manhood Suffrage,” Revolution, Dec. 24, 1868.

[4] Proceedings of the Eleventh National Woman's Rights Convention, Held at the Church of the Puritans, New York, May 10, 1866 (New York: Robert J. Johnston, 1866).

Erec Smith, “We the People” are Responsible for Upholding the Constitution

What may be the elephant in the room for all four essays is that no reified document is immune from human imperfection. In Rhetoric, Aristotle wrote, “it is proper that laws, properly enacted, should themselves define the issue of all cases as far as possible, and leave as little as possible to the discretion of the judges.” This sounds like a push for universal law devoid of contingent considerations, a point taken up by lawyers and scholars responsible for legal realism and critical legal studies, schools of thought that share the common denominator of holding that legal decisions should not be made outside of their social contexts. Documents like the Constitution are unavoidably a-contextual and a-temporal in nature. What is to be done?

Aristotle believed that lawmakers should define as much as possible and leave as little as possible to future judges. He had several reasons for this. He wrote,

in the first place, because it is easier to find one or a few men of good sense, capable of framing laws and pronouncing judgements, than a large number; secondly, legislation is the result of long consideration, whereas judgements are delivered on the spur of the moment, so that it is difficult for the judges properly to decide questions of justice or expediency.

The Constitution is, indeed, the result of “long considerations,” consisting of much contention and disagreement. Not everyone had the wherewithal to carry out such a foundational endeavor. The founding fathers found themselves with a lofty task of creating a document that could live—i.e., could be revised through several steps—because they were wise enough to know they could not predict every future legal situation and that most citizens did not have the wherewithal to legislate and administer justice. Nevertheless, what must not be revised was the American resolve to follow the Constitution regardless of personal and subjective desires.

Aristotle elaborates on this last point in his subsequent statement.

But what is most important of all is that the judgement of the legislator does not apply to a particular case, but is universal and applies to the future, whereas the member of the public assembly and the diecast have to decide present and definite issues, and in their case love, hate, or personal interest is often involved, so that they are no longer capable of discerning the truth adequately, their judgement being obscured by their own pleasure or pain.

Aristotle and, apparently, those who composed the Constitution, knew that the contingencies of context could alter the connotations of a law and that human emotion would often taint the color of law. They considered most humans too emotionally erratic to be trusted to make decisions on the spot, based on contemporary contingencies. They had to be beholden to a set of rules that could keep their emotions in check. 

However, isn’t Reconstruction’s failure the result of such unchecked emotion? Rutherford B. Hayes’s desire to be President at the expense of black Americans, Ulysses S. Grant’s alcoholism, and Andrew Johnson’s Southern resentment were all emotional obstacles to the just administration of the law. I conclude that the issue is not that the Constitution is inherently oppressive in nature, as critical legal theorists may conclude. It is not. The issue is that those left to uphold it can be and have been oppressive.

In “Speech on the Dred Scott Decision,” Frederick Douglass insisted that “Slavery lives in this country not because of any paper Constitution, but in the moral blindness of the American people, who persuade themselves that they are safe, though the rights of others may be struck down.” Douglass reiterates Aristotle’s point. The problem is not the Constitution; it’s the people responsible for upholding it. 

“We, the people”—not we, the white people—not we, the citizens, or the legal voters—not we, the privileged class, and excluding all other classes but we, the people; not we, the horses and cattle, but we the people—the men and women, the human inhabitants of the United States, do ordain and establish this Constitution, &c.

I ask, then, any man to read the Constitution, and tell me where, if he can, in what particular that instrument affords the slightest sanction of slavery? Where will he find a guarantee for slavery?

The Constitution must be followed to the letter to prevent people from making decisions based solely on selfish wants. If laws are inherently unjust, we must work to revise them accordingly. The Constitution did not fail black Americans. People did. Reconstruction did not fail because Americans followed the Constitution; it failed because they did not.