The Civil War is commonly regarded as having split the nineteenth century, and indeed all of American history, in half. The loss of life, the material destruction, the trauma of secession, and the triumph of emancipation all lead historians to conclude that the war fundamentally changed the nature of the nation. In terms of the American system of federalism, it was the dozen years following the war—known as Reconstruction—that produced the more significant changes. The pressing issues regarding the proper balance of federal and state authorities that had dominated both sections during the war years—debates over the president’s ability to suspend habeas corpus and impose martial law, and over the detainment of political prisoners—receded from view. In their place emerged an even more difficult problem: how to ensure that black Americans would be able to claim the freedom promised them by emancipation while still retaining the United States’ system of balanced national and state power.
Few of the participants in the momentous debates of the postwar years began with an interest in expanding federal power for its own sake. Radical Republicans were mainly focused on solving the problems faced by southern African Americans. They were not committed by any special principle to altering the U.S. system of dual federalism, though neither were they hostile to the idea of expanding national power at the expense of the states. Moderate and conservative Republicans, and nearly all Democrats, held strong views to the contrary. A clear majority of Congress was reluctant to modify the long legacy of balanced power in the American system of government. This situation created a challenge for historians who have to reconcile the ideological preferences of most Republicans with their eventual support for quite radical changes in American government. The result is a continuing debate about the intent of those Republicans who framed and passed the Thirteenth, Fourteenth, and Fifteenth Amendments and the related elements of Reconstruction. Their purposes at the time were not clear, and the language of the amendments remains open to interpretation. Compounding this problem is the importance of the Fourteenth Amendment in modern jurisprudence, which has skewed historical examinations of the period.
The repudiation of secession and the enactment of emancipation during the Civil War established the perpetuity of the Union and assured federal supremacy over state laws, but did not clarify how individual rights would be protected after the war. Citizens of both sections had given their governments wide latitude to impose unusual restrictions on personal freedoms during the war, but these were quickly retracted in peacetime. Adding to the complexities of the postwar period were the turbulent politics of the time, often pitting northern whites and southern blacks against southern whites. Republicans enacted two sets of changes: a radical expansion of federal authority by statute that ensured free elections in the South but that was abandoned within a decade; and a second set of changes, embodied most fully in the Fourteenth Amendment, that made little difference for the lives of ex-slaves in the short term but provided the foundation for the fundamental reform of American civil rights laws and American federalism that came in the 1950's and 1960's. At the end of the Reconstruction, the United States retained its system of dual federalism with the national and state governments continuing to have separate spheres of authority.
THE PURSUIT OF CIVIL RIGHTS
The Emancipation Proclamation, issued in preliminary form in 1862 and made permanent January 1, 1863, initiated a shift of power from the states to the federal government on a central issue in American life, but Abraham Lincoln justified the measure on the basis of military necessity. The Thirteenth Amendment, passed by Congress in early 1865 and enacted in December of that year, permanently ended slavery and did so expressly through the Constitution, thus securing African Americans’ freedom on a surer footing. Historians regard the Thirteenth Amendment as the first one to enhance the power of Congress at the expense of the states; earlier amendments had all protected states or individuals from federal interference. At the time, conservatives were alarmed by the broad wording of Section 2: “Congress shall have power to enforce this article by appropriate legislation.” This clause seemed to allow Congress the ability to pass whatever laws were necessary to ensure equality, regardless of how those laws affected the balance of power between the states and the federal government. But the amendment also contained indications that its authors had not abandoned the prewar conceptions of the Union as a balanced system. When referencing the authority of the United States, the amendment used the older plural language—“or any place subject to their jurisdiction.” In 1865–66, congressional Republicans envisioned freedom for African Americans to include basic civil rights, such as the ability to marry, own property, sue and be sued, and move, but they did not plan for a broad grant of political rights or social equality.
By early 1866, the political conflict between congressional Republicans and President Andrew Johnson that would shape the course of Reconstruction was beginning. Johnson was willing to accept conservative white domination of southern blacks, through the harsh “Black Codes” passed by southern state legislatures in 1865, and most northern Republicans were not. By setting himself in opposition to Congress, the political contest revolved around control of both the process and the outcomes of Reconstruction. Republicans themselves were deeply divided over how to bring the southern states back into the Union. Particularly after the violent summer of 1866, characterized by bloody race riots in Memphis and New Orleans, most agreed that the violence and instability of southern states required a slower and more deliberate reintegration of the seceded states back into their normal relation with Congress and the nation. Most Republicans also agreed that the rights of loyal men in the South needed to be protected, but these two elements made for a relatively narrow coalition. Once those objectives were accomplished, the party returned to the fractious coalition it had been before the war.
Based on investigative reports of the South in 1866–67, congressional Republicans came to the conclusion that, in violation of Article IV of the Constitution, southern states were not guaranteeing for their citizens a “republican form of government.” In response, Congress passed the Reconstruction Acts in early 1867 and assumed control of ten southern states. Tennessee, which had ratified the Fourteenth Amendment, was exempted from the process of congressional Reconstruction. Divided into five military districts, each with a military governor, the operations of southern state governments were effectively nationalized. The states were required to assemble constitutional conventions that would rewrite their state charters. Once revised and passed, these were submitted to Congress, where, after approval, the state could hold regular elections and reinstitute civil government. In its control of the courts, administration of labor contracts, and supervision of voter registration and elections, Congress assumed unprecedented federal control over states, but this control was temporary and expedient from the start.
The issue that did more to permanently expand national authority was the effort to define the content of freedom. The first effort came with the 1866 Civil Rights Act, the first of its kind in U.S. history, which enacted the civil rights protections envisioned by the framers of the Thirteenth Amendment. The Civil Rights Act worked within the federal system by forcing states to equitably enforce their laws with respect to race; the traditional relationship between state and federal officers with regard to police power was modified but not supplanted.
The Fourteenth Amendment, ratified in 1868, instituted more significant structural changes in the federal system. Passage of the Thirteenth Amendment had done little to make freedom more meaningful for southern African Americans, and Republicans recognized the moral and political necessity of establishing a structure that would ensure equality. Section 1 granted citizenship to all persons born or naturalized in the United States, which overturned the Supreme Court’s 1857 Dred Scott decision, and guaranteed the free exercise of the “privileges and immunities” of citizenship. This section has had the most profound impact on American jurisprudence of perhaps any section of the Constitution, but at the time the most hotly contested elements were Section 2, which established federal representation on the basis of the voting population, thus penalizing southern states if they did not enfranchise blacks without mandating black suffrage, and Section 3, which disfranchised those Southerners who had been active Confederates. Where the 1866 Civil Rights Act had been quite specific with regard to rights, the Fourteenth Amendment made no mention of race and did not articulate the protected rights. The nature of the amendment, which demanded equal protection of individual rights within states rather than encouraging comity, which would have been old practice, concerned many conservatives, who worried about the expansion of federal power at the expense of states. Dismay among Democrats and some conservative Republicans was exacerbated by passage of the Fifteenth Amendment, the approval of which also became a precondition for states’ readmission to the Union. Nonetheless, like Republicans’ earlier efforts, this one was marked by half steps. The amendment prohibited the denial of suffrage based on race, but did not inhibit states from imposing literacy tests, grandfather clauses, poll taxes, and the variety of strategies that Southerners used to prevent blacks from voting in the early twentieth century.
PROTECTING REPUBLICAN GOVERNMENT
Efforts to establish republican forms of government in the South—the ostensible reason for Congress seizing control of the process of Reconstruction—proved difficult to achieve. Conservative white citizens maintained strong opposition to state Republican governments and, in concert with the Ku Klux Klan, sought to deny African Americans the ability to mobilize themselves politically. This context is a crucial part of any explanation of the expansion of federal authority. Rather than being sought for its own sake, a more vigorous national authority emerged in the context of the fight to establish a fair and peaceful civil society in the South. Between 1868 and 1871, violence was directed against African American leaders all over the South. Ministers, teachers, politicians, and labor leaders were subjected to harassment, beatings, arson, rape, and murder. Congress responded to this situation with a series of laws known collectively as the Force Acts, which were designed to restore peace to the South and to provide for fair elections.
In May 1870, Congress passed the Enforcement Act, which established as a felony under federal law any attempt to deprive a citizen of the “free exercise and enjoyment of any right or privilege granted and secured to him by the Constitution.” This law was aimed at the extralegal conspiracies that southern courts refused to prosecute under normal criminal statutes. The intent behind the Enforcement Act was to deny the ability of individuals to organize for the purposes of infringing on the rights of others. The following spring, Congress passed the Ku Klux Klan Act, which elaborated the definition of conspiracy set out by the Force Acts and specifically identified efforts to deny people the right to vote as a crime under federal law. This element resonated with the implication of the Fifteenth Amendment that voting was the central expression of American liberty. Congress sought a way to give the mostly black victims of terrorist acts recourse in federal court when state courts failed to protect them. The act also allowed the president to suspend habeas corpus in places of insurrection, something that Ulysses Grant did in a handful of counties. The government did achieve some success using the law to crack down on the KKK—more than 3,000 indictments were reported by federal grand juries, hundreds of suspects pled guilty, and some even served time. The act brought temporary peace to the region but inspired the ire of conservatives around the country. The Force Acts were perhaps the most radical set of measures passed by Congress during Reconstruction, but despite their effectiveness at quelling the violence and restoring a more level political playing field, they were short-lived.
LIMITING FEDERAL PROTECTIONS
Republicans’ abandonment of Reconstruction began well before the date typically given as the endpoint of the period—1877. The return of state governments to local control, even those under Republican control, marked a relaxation of federal involvement. All but three of the southern states were restored to normal relations with the nation and Congress by the spring of 1868. Once the Democrats assumed control, as they did in all southern states by 1877, the split between national and state authority became even more apparent. The only right categorically granted to black Southerners was the ability to vote but it became increasingly difficult for the federal government to police even that. Politics explains part of the transformation; Republicans were sensitive to the demands by northern voters that the federal government spend as little as possible, and this translated into pressure for a brief Reconstruction. Hoping to attract moderates and conservatives, which Republicans did by nominating Grant in 1868, they ended Reconstruction partly because of party interests.
It was the Supreme Court, however, that did the most to limit the effectiveness of federal legislation and the postwar amendments. Two cases in which the Court endorsed a narrow view of the Fourteenth Amendment, and thus limited the ability of the federal government to intervene on behalf of individuals subject to abrogations of their civil rights, mark the conservative victory that ended Reconstruction with federalism largely intact. The first, the 1873 Slaughterhouse Cases, revolved around a claim brought against the New Orleans municipal government by a group of butchers. The city had granted a monopoly on the slaughtering business, supposedly as a result of bribery and corruption, and a group of butchers brought suit, arguing that it abridged their privileges and immunities by denying them the right to earn a livelihood. Writing for the majority, Justice Samuel Miller defined the “privileges and immunities” as those granted by the federal government. These included such things as the right to petition Congress, file a homestead claim, and receive protection on the seas, but the important rights, such as the enforcement of contracts, personal protection, and the right to own property, were all held to be state laws. Miller argued that if a butcher deserved equal rights under the Constitution, then Congress must be able to license butchers (and all professions) to ensure this, but that would destroy dual federalism. In his opinion, Miller admitted that the purpose of the Thirteenth Amendment was to ensure freedom, but he refused to recognize the steps that were necessary to guarantee that, given the state of race relations in the postwar South. Unable to think beyond confines of federalism, Miller could only imagine what legislation Congress might pass under the privilege of new authority in the Fourteenth Amendment. In a dissenting opinion, Justice Stephen Field argued that even the old Constitution protected the basic principles that Miller asserted were solely state jurisdiction. The logic of the Fourteenth Amendment, Field held, intended the protection of basic rights, not just arcane federal opportunities. Field was less concerned about expanding congressional power because the Fourteenth Amendment did not give Congress any regulatory power. It only allowed federal courts to nullify state law, not replace it. The ambiguities in the Fourteenth Amendment enabled this debate, the violence done to the freed people gave it a tragic cast, and the lack of concern about that violence allowed the Supreme Court, by a 5–4 margin, to reduce the content of the Fourteenth Amendment to a negligible protection its framers would not have recognized.
Three years later, the Supreme Court applied the logic from the Slaughterhouse Cases to a case involving egregious violence done to African Americans. On Easter Sunday 1873, in the northern Louisiana parish town of Colfax, a group of African Americans armed themselves and turned out in the town square to protect their local officials, who were being driven from offices around the state by groups of white militia. The black defenders were driven into the courthouse, which was set ablaze, and those fleeing the building were shot. Including the executions performed in the town square that night, over 100 people were killed in what became known around the country as the Colfax Massacre. A conviction on federal charges was attained for one of the ringleaders in the white militia. His case was appealed to the Supreme Court, which, in United States v. Cruikshank, unanimously overturned the prosecution. Drawing on the narrow logic of Slaughterhouse, the Court found that the Fourteenth Amendment was intended only to protect individuals from abridgements of their rights by states. When citizens abridged the rights of each other, no legal recourse was available. The Court found that only the state government could prosecute a citizen for abridging another’s rights, and Louisiana was not interested in charging Cruikshank, so he went free. The Court confirmed the limited nature of the protection established under the Fourteenth Amendment in the 1884 case Ex Parte Yarborough, in which a black man was murdered on his way to vote in a federal election in rural Georgia. Georgia did not prosecute, and in this case the Supreme Court unanimously upheld a federal indictment because the election in question was a federal one. The Court ruled that it was a “necessity of the government itself ” to ensure fair elections, but beyond that the federal government could ensure very little.
Taken together, the Slaughterhouse and Cruikshank decisions invalidated the Force Acts. By the end of Reconstruction, the extent of the protection offered to African Americans as a result of the postwar amendments was protection for the one right specifically noted in an amendment—voting. Because of fears about consolidation, Congress had failed to establish full national protection for specific rights in the Fourteenth Amendment. Because of similar fears, the Supreme Court imposed a constricted reading on the amendments in practice. Despite a great shift in authority from the states to the national government during the period of Reconstruction, both Republicans and Democrats remained committed to dual federalism. The result was that a system of balanced powers continued into the twentieth century. For African Americans, this meant little commitment at any level of government to making the experience of freedom a meaningful one.
Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York: Norton, 1978); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction 1863–1869 (New York: Norton, 1974); and Harold Hyman and William M. Wiecek, Equal Justice under Law: Constitutional Development, 1835–1875 (New York: Harper & Row, 1982).
Last Updated: 2006
SEE ALSO: American System; Citizenship; Civil Rights Act of 1875; Civil War; Comity; Elections; Federal Courts; Fourteenth Amendment; Municipal Government; Police Power; Secession; Slaughterhouse Cases; Slavery; State Courts; State Government; State Legislatures