Liberty Matters

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.