The Civil War and the Second Founding

Welcome back to Constitutional Perspectives!

For the last few lessons, I've been telling the story of slavery and the American Constitution. Last time, our story finally reached the outset of the Civil War in 1861. Today, then, I'll be talking about how the war, and its settlement, remade the constitutional order. In my view, the Civil War and Reconstruction, taken as a whole, are properly regarded as the death of what we might call the First American Republic (following the French style of nomenclature), and the beginning of the Second, which (again in my view) we are still living in a hundred and fifty years later.

Now, there are two aspects to the constitutional transformation around the Civil War. One is about slavery and civil rights; the other, the nature of the federal Union and the relationship between the states and the central government. Today I am mostly interested in the former: on the Civil War specifically as the culmination of the story of slavery in the antebellum Republic. But of course the two are linked, and it is not possible to discuss the one without also mentioning the other. So, although the topic will mostly have to wait until Level Two, I should begin with a brief sketch of Lincoln's view of the war.

The Southern states, in their resolutions of secession, saw themselves as having exited the federal Union. They became, in effect, independent sovereign nations. And then these eleven sovereign states joined together to form the Confederate States of America. In some ways the Confederacy was modeled on the existing Union, but of course in some ways it was a repudiation thereof. The preamble of the Confederate Constitution, which is otherwise largely a rehash of the federal Constitution, said that each state was "acting in its sovereign and independent character." You won't find that language anywhere in the 1789 document, no matter how hard you look.

Anyway. The point is that the Confederate states thought they were no longer part of the United States of America. Lincoln disagreed. His entire theory of the war proceeded from the belief that secession was illegal. Why he thought this, why he was right to think this, will be a matter of considerable interest when we get to Level Two. For now it matters only that he did think it, and what followed. If secession was illegal, then this was not a war against an external power. Indeed, the territory of the so-called Confederacy was still part of the United States. It was in fact part of the territory over which Lincoln had supreme executive power. He was charged with taking care that the laws be faithfully executed, including in the South.

And of course the laws were not being faithfully executed in the South. That was rather the whole point. Although this territory was still a part of the United States, the laws of the United States had fallen into abeyance. The South was in a state of rebellion, and it fell to Lincoln to put that rebellion down. That was the mission of the Union Army in what we now call the Civil War: to suppress the rebellion, and to reestablish lawful, republican government in the Southern states. For of course, on Lincoln's theory, the things calling themselves the governments of Virginia, South Carolina, Texas, etc. were really no such thing. They were just a pack of rebels, with no proper authority whatsoever. The Guarantee Clause of Article IV obliged him, as it obliged the entire federal government, to remedy the situation, to put these usurper governments down. In their place, Lincoln and the Union Army would erect new governments, loyal to the Union and adherent to the Constitution.

This is where we get the word Reconstruction. The project began during the war, indeed quite promptly. Wherever Union forces managed to gain control of Southern territory, they set about re-establishing some kind of loyal government. Of course, during the war itself these were mostly military governments. Senator Andrew Johnson of Tennessee, for example, was rewarded for staying loyal to the Union with being made military governor of his home state in the spring of 1862. As the war continued, and particularly after it had ended, these military governments transitioned to civil governments – still supervised by the Union and the Union army. It was this process of Reconstruction that gave its name to the three transformational amendments adopted in the immediate wake of the War.

The actual transformation, though, happened during the war. Lincoln had at first tried quite hard to keep the stakes of the conflict to a minimum. In the early going, the North said it fought for "the Union as it was, the Constitution as it is." The point was to suppress the rebellion; that was it. Recall that Lincoln had supported a whole entire constitutional amendment that would have forever forsworn any federal power to interfere with slavery in the Southern states in an attempt to forestall the war.

Of course this stance was in large part necessitated by the urgent need to keep the border states (Delaware, Maryland, Kentucky, and Missouri) onside. These were all still slave states, on the eve of war, and while they stayed loyal to the Union, Lincoln had no desire to test that loyalty by threatening their "domestic institutions." At the start of the war, then, he would have happily taken a deal that brought the Southern states back into the fold without acting against slavery at all; he would have been ecstatic. Indeed, he was saying the same thing in the summer of 1862. Newspaperman Horace Greeley had publicly implored Lincoln to adopt abolition as his war aim. Lincoln famously responded:

If there be those who would not save the Union, unless they could at the same time save slavery, I do not agree with them. If there be those who would not save the Union unless they could at the same time destroy  slavery, I do not agree with them. My paramount object in this struggle  is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it.

Except we now know this was bullshit – or, to be a bit more polite about it, posturing. When he wrote the above, Lincoln had already drafted what would become the Emancipation Proclamation. He was merely waiting for a military victory to issue it. That victory came at Antietam, and Lincoln issued the (Preliminary) Emancipation Proclamation on September 22nd, 1862, to go into effect on the first day of the new year.

Now, the Emancipation Proclamation dealt only with slavery in the areas in rebellion. This was partly motivated by the same realpolitik about the border states mentioned above, and partly by Lincoln's own long-held constitutional views. Congress had no power to interfere with slavery in the states, he had always held. Hence he considered the two Confiscation Acts, passed by Congress in 1861 and '62 respectively, invalid. But he, as Commander-in-Chief, could adopt emancipation as an instrument of war, as compelled by military necessity. The purpose of the Proclamation, then, was not so much to deliver freedom to the slaves for the sake thereof, but to cripple the Confederacy, to hinder its war efforts.

Nevertheless, the Proclamation certainly had the effect of tying slavery's fate to the outcome of the war. Freeing every slave in the areas in rebellion as of January 1st, 1863 would be tantamount to destroying the peculiar institution altogether. There was no way slavery could sustain itself if it existed only in the border states. A Union victory would have to mean the total abolition of slavery. The war had become a constitutional war; the fight for "the Constitution as it is" had failed.

It had never, I think, been a realistic goal. The antebellum Constitution collapsed because it had to collapse. It was genuinely at war with itself; indeed, it had been an unholy alliance from the very start. The Emancipation Proclamation can be seen as the belated recognition that the First Republic, as I like to think of the constitutional order that existed from the Founding to the Civil War, was dead, and was not coming back.

Proclaiming the birth of the Second Republic would wait until November 1863. Lincoln had been called to speak at the dedication of a military cemetery in Gettysburg, Pennsylvania, the site of a key Union victory four months prior. This is what he said:

Four score and seven years ago our fathers brought forth on this continent, a new nation, conceived in Liberty, and dedicated to the proposition that all men are created equal.

Now we are engaged in a great civil war, testing whether that nation, or any nation so conceived and so dedicated, can long endure. We are met on a great battle-field of that war. We have come to dedicate a portion of that field, as a final resting place for those who here gave their lives that that nation might live. It is altogether fitting and proper that we should do this.

But, in a larger sense, we can not dedicate—we can not consecrate—we can not hallow—this ground. The brave men, living and dead, who struggled here, have consecrated it, far above our poor power to add or detract. The world will little note, nor long remember what we say here, but it can never forget what they did here. It is for us the living, rather, to be dedicated here to the unfinished work which they who fought here have thus far so nobly advanced. It is rather for us to be here dedicated to the great task remaining before us—that from these honored dead we take increased devotion to that cause for which they gave the last full measure of devotion—that we here highly resolve that these dead shall not have died in vain—that this nation, under God, shall have a new birth of freedom—and that government of the people, by the people, for the people, shall not perish from the earth.

It is a truly remarkable thing that this man stood up and spoke ten sentences and, in so doing, changed the nature of the whole damn country. Government of the people, by the people, for the people: a stunningly concise statement of the essential principles of democratic self-government.

That Lincoln drew on the Declaration is no accident. "Conceived in liberty, and dedicated to the proposition that all men are created equal" is an apt description of 1776. It cannot be made a plausible description of 1789, which, on the contrary, was an ugly compromise with one of the worst forms of human bondage ever invented. Lincoln knew this. In the Gettysburg Address, he placed the high ideals of the Declaration above the sordid reality of the Constitution. The nation would have a new birth of freedom – because it needed one. Because the nation was falling short of its highest commitments; because freedom, its Founding ideal, was not and never had been a reality.

The Constitution had failed, and the new order would require its wholesale, err, reconstruction. But that First Republic Constitution had only been one attempt at carrying the principles of the Declaration into practice. Its failure only meant that we had to try again. The new order, the Second Republic, would stand in the same relation to the Declaration as the First Republic had done. Except of course, it would be better, truer. This time, the nation would not try to paper over the conflict between its ideals and its practices. Everyone had seen how well that worked out. It was time to follow the ideals and reform the practices.

Of course if the North had lost the war, Lincoln's words might have been for naught. But we didn't lose the war, and, after a series of military adventures highlighted by Sherman's March through Georgia, Confederate commander Robert E. Lee surrendered to Union general Ulysses S. Grant at Appomattox Courthouse in Virginia on April 9th, 1865. The war was over; the South had lost. Lincoln's vision of the Republic had become law; now the task was to make it a reality.

Even before Lee's surrender at Appomattox, Congress had already proposed a constitutional amendment abolishing slavery. This proposal was ultimately ratified by three-fourths of the states in December 1865, and became the Thirteenth Amendment. Interestingly, almost every Southern state ratified the amendment, despite having literally just rebelled in defense of slavery. To some extent this was just part and parcel of the surrender at Appomattox: they knew what losing the war had meant. It was also the result of diplomacy between Andrew Johnson – who had been made Lincoln's running mate in 1864, and was now President after Lincoln's assassination – and the leaders of the white South. These men were worried that the amendment would give Congress a broad power over the status of the freed slaves, including potentially the power to grant them the right to vote. Absurd, said Johnson. It would do no such thing.

Well. Four months later, Congress adopted the Civil Rights Act of 1866. This was a response to the notorious "Black Codes," adopted throughout the South in the wake of emancipation, that had essentially denied all civil rights to the freedmen. Congress wasn't having it, and the Civil Rights Act proclaimed that

All persons ... shall have the same right ... to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens ...

But there was some doubt as to the Act's constitutionality, or, more precisely, whether the Supreme Court would acknowledge it as constitutional. The Republicans in Congress thought this was an entirely proper act enforcing the Thirteenth Amendment – after all, the Black Codes were essentially an effort to keep the freedmen in a condition of slavery in all but name. But the Court seemed likely to disagree.

Thus, Congress quickly drafted and proposed another amendment, which we know today as the Fourteenth. Its first section effectively wrote the terms of the Civil Rights Act into the Constitution – and, in the Citizenship Clause, directly abrogated the Dred Scott decision to boot. The second section was a preliminary attempt at addressing the question of political rights for the freedmen; it provided for states to lose a measure of their representation in Congress if they restricted voting rights. The third section banned all those who had sworn an oath to the Union but then fought for the Confederacy from office, subject to congressional amnesty. The fourth dealt with the Union and Confederate war debts, respectively, affirming the former while repudiating the latter. The fifth and final section provided for congressional enforcement of the whole thing.

All together, the Fourteenth Amendment can be seen as the peace treaty that ended the Civil War for real. There was again some drama in its adoption: the Southern states initially refused, until Congress declared that their governments would not be readmitted to the Union unless they ratified the thing. (Yes, that was a slight fudge on the technicalities, since under Lincoln's view they had never actually left the Union. Technically what was at stake was recognition of the Southern state governments as lawful and republican, under the Guarantee Clause. But still.) That made them fall in line.

As the Thirteenth Amendment wrote the Emancipation Proclamation into law, so the Fourteenth followed up on the promise of Gettysburg. The first section is today the cornerstone of our government of, by, and for the people; it is what makes America free. It does not only guard against the reimposition of racial caste: it is the only part of the entire federal Constitution that requires the states to respect human rights as a general matter. And the mere act of imposing a federal law of human rights upon the states transformed the federal Union. The nation had been made primary over the states, once and for all.

Even the Citizenship Clause reflects this transformation. Where once upon a time, a man would have been an American citizen insofar as he was a citizen of his state, now he was an American citizen first, and a citizen of his state in consequence thereof. Around this time, the very language used to talk about the country starts to change. "These United States" falls out of fashion; "the United States" is increasingly used as a singular noun, not a plural. And people increasingly call themselves Americans rather than Virginians or Pennsylvanians or what-have-you. The effects of this transformation for constitutional law are incredibly far-reaching, and we will of course be seeing them throughout the rest of this series.

The formula for protecting the voting rights of the freedmen, though, was an utter failure. It turned out to be practically impossible to enforce the thing. Also, it turns out that the white South would much rather have taken a 50% cut in their congressional representation than let those n****rs vote. Among other things because the denial of black suffrage threatened the utter extinction of the Republican Party in the South, Congress again had to write a new amendment, this one dealing expressly with voting rights. There was some thought that they might just make voting an express right of citizenship, which would have swept in the nascent cause of women's suffrage along with black suffrage.

It didn't come to pass: the Fifteenth Amendment was actually the first time that the Constitution spoke explicitly in terms of race. This actually caused some suffragist leaders, including Elizabeth Cady Stanton and Susan B. Anthony, to oppose the amendment. But hey, they couldn't vote anyway. The amendment was proposed in early 1869 and ratified over the course of about a year. This time the Southern states did not need any cajoling to ratify it, because with Andrew Johnson out of the way and war hero Ulysses Grant the new President, the Reconstruction Southern governments were already letting black people vote.

This was seen by many at the time as completing the work. Slavery had been abolished, and the civil and political rights of the former slaves had been secured. And they all lived happily ever after, right?

Yeah, not quite.