An Interesting Question

I came across this query, posed by a professionally-trained (and PhD-bearing) historian who hails from the South:

Why in 1865 when the US had crushed the rebs, didn’t the Republicans establish equality for blacks on a firm legal foundation?

Apparently this professional historian’s training was rather incomplete, unless we are simply to assume that the scholar in question is asking a question to provoke discussion because he in fact knows the answer.  Or does he?

Readers of this blog know that I’ve already explored the issue of black suffrage in a series of posts.  But let’s take on this question, because the person posing the question may not be the only one in the dark when it comes to Reconstruction, Republicans, race, and equality.

First, for most of 1865 following the death of Abraham Lincoln and Andrew Johnson becoming president, congressional Republicans had no opportunity to do anything until Congress convened in December.  There was no Republican party in the South, and Johnson’s plan of Reconstruction left the issue of civil rights and suffrage in the hands of white southerners in a series of constitutional conventions in seven states (four other states — Louisiana, Virginia, Arkansas, and Johnson’s own Tennessee — still operated under governments established during the war).  At this time “civil rights” was a concept largely defined by the states: the Bill of Rights restricted the federal government but not state governments (this was about to change).  In short, prevailing notions of federalism as well as political circumstances left the Republicans with very little they could do, although they could refuse to seat representatives elected by the former Confederate states as a sign that they disapproved of the refashioned state constitutions.  That is in fact exactly what they did when Congress met in December 1865, the same month the Thirteenth Amendment was ratified.

It was not until 1866 the Republicans were able to pass legislation concerning civil rights.  The Civil Rights Act of 1866 was the first effort to protect civil rights on the federal level, and even then it came into play only in cases where southern states did not establish or protect equal civil rights.  It only became law over President Johnson’s veto, the first time Congress overrode a presidential veto of significant legislation. The Fourteenth Amendment, with its definition of citizenship, represented yet another step in the same direction of federalizing civil rights.  It would not be until the following year that Republicans turned their attention to black suffrage, an issue that’s already been discussed on this blog.

In short, Republicans did establish legal equality for blacks on as firm a legal foundation as was possible at the time, especially given concepts of constitutionality and federalism.  In 1875 Republicans would go further with a second civil rights act, but that would be largely dismantled by the Supreme Court in 1883 precisely because the Court claimed it went too far.

So the question posed above is flawed in a number of ways.  A more useful inquiry might be: Why did Republicans prove unable to preserve and protect what they had established?  That’s a different question that may well be answered at another time.

It always amazes me when professionally-trained historians who have taught American history in post-secondary institutions ask such questions.  Surely they know how to find the answers; in this case, the question is badly framed, and that’s being kind.  I suspect it’s a bit of a leading question, designed to spark more heat than light, but it serves as a useful reminder that we have much to learn about Reconstruction, and it was Reconstruction that did much to define what the Civil War did and did not achieve.

10 thoughts on “An Interesting Question

  1. Al Mackey July 14, 2011 / 6:28 am

    It amazes me when some folks would on the one hand condemn a president or a party in Congress for acting in a “dictatorial” fashion and on the other hand condemn that same president or party in Congress for not acting in a dictatorial fashion.

    • Ray O'Hara July 14, 2011 / 9:52 am

      the writer of the quote has never called Lincoln a dictator nor does he hold anything that could be called lost cause views.

      • Brooks D. Simpson July 14, 2011 / 9:59 am

        Well, Ray, you’ve said some pretty pointed things about the writer of the quote. Such as this and this and this, where you call the poster “a closet Lost Causer.” I don’t see Al calling the historian in question a “Lost Cause” advocate, simply incompetent. You’ve called him a “closet Lost Causer.”

      • Al Mackey July 14, 2011 / 7:47 pm

        It’s a commentary on historically inept people in general, one of whom the writer of the quote most certainly is. He’s definitely excoriating Congress for not acting dictatorially.

  2. Al Mackey July 14, 2011 / 7:29 am

    Oh, and they also expect Congress to magically call itself into an early session at a moment’s notice–or they expect that Congress is always in session.

  3. Al Mackey July 14, 2011 / 7:36 am

    Good grief. I just read his whole post on that and he completely botched it.

    • Brooks D. Simpson July 14, 2011 / 1:37 pm

      It does not improve with subsequent replies. But it is part of the usual pattern of chastising “the North” (or “Republicans”) as a way of defending the white South. There are more sophisticated ways of exploring Reconstruction, especially if one can get away from the politics of blame and recrimination to make oneself feel smug.

  4. Ray O'Hara July 14, 2011 / 1:06 pm

    Yes and for the same reason you have, he is clueless about the ACW and perversly proud of that. He keeps at his discredited TSAO but you know he is no lost causer nor a libertarian loon.

    and no I don’t inform him when he is a top

    • Brooks D. Simpson July 14, 2011 / 1:34 pm

      Ray, as cited before, you’ve called him a “closet Lost Causer.” You’re arguing with yourself.

      The person quoted is of interest primarily as an illustrative type, not as an individual. Like other people who post rather interesting things (Helga Ross and Mike Griffith, to name but two), it is the message that’s worth discussing, no matter how much the messenger wants to make it about something else (although that is the cause of some amusement). I see these three people as having much in common, but only one is a professionally-trained historian who’s earned a PhD. That such a person is ignorant of the basic facts of Reconstruction is hard to believe. Usually historians do not boast that they are ignorant or clueless, especially when by training they are equipped to inform themselves.

  5. Margaret D. Blough July 14, 2011 / 4:15 pm

    The simple answer is that the Republicans DID leave a strong legal foundation. It was undermined and ignored for many decades by the courts and by subsequent Congresses, but no one ever repealed the statutes nor was there ever a constitutional amendment ratified that removed the constitutional amendments. Eventually, judicial interpretations changed and so did Congress and the legal legacy of the Radical Republicans and Ulysses S. Grant came back to life. The statutory provisions made into law by the Civil Rights Acts of 1866 and 1871 (also known as the Ku Klux Klan Act) are still valid law, particularly 42 USC 1983. They also left “The Sleeping Giants”-Amendments 13-15 to the Constitution. Amendment 14 ultimately became, via the incorporation doctrine, the means by which most of the Bill of Rights were ultimately made applicable to the states by the courts via the Incorporation Doctrine of constitutional law.

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