22. Constitutional Crisis and Impeachment of a President
Articles,  Blog

22. Constitutional Crisis and Impeachment of a President


Professor David Blight:
I was in a meeting some months ago of the New York
Historical Society’s Board of Trustees;
august, wonderful group of people.
That’s about thirty-five very rich New Yorkers and two token
historians, and I’m one of the token historians.
They have us there for window dressing, and other good and
useful and noble purposes. And during a discussion of a
subject I won’t even go into, one of the very intelligent and
very dedicated members of that board–and I’m not being
ironic–said that he really wished American history could be
about “people of goodwill.” He wished American history
wasn’t so full of conflict. In effect, he was asking “why
can’t we really just tell the stories about people of
goodwill?” And I remember thinking,
“Oh dear, this poor man.” But of course I didn’t say
anything, kept my mouth shut. I nearly threw up,
and I just went home, about my business.
But why can’t history just be about people of goodwill? I’ll leave that to you,
to figure out. Sometimes there is a great deal
of goodwill and sometimes there isn’t.
Now, Reconstruction is a classic story of–we’ve said
this already–great change, great experimentation,
change forced upon people in some ways–as we’ll see with the
Fourteenth Amendment in a moment–and yet enough of a
cadre of leadership accepted that challenge and rewrote the
country you live in. And yet, of course,
like all great change, it caused a tremendous–and if
there’s a Newton’s Law of history–an opposite and equal
reaction. Revolutions always cause
counter-revolutions, just count on it.
Look throughout American History just for a moment.
Let’s play some games of historical cycles just for a
moment. Think of the greatest,
take your pick, the greatest fundamental
changes in American History, whether that’s in society,
the law, politics, massive immigration that
changed the demographics of the country–take your pick,
but pick three or four of the greatest moments of change in
American History. Every one of them caused a
counter-change. Every revolution we have causes
a counter-revolution. You grew up reaping the great
changes of the Civil Rights Revolution.
You take them for granted, most of us do.
But you also came of age in the midst of the counter-revolution
against it. If you experienced the Civil
War and Reconstruction in America, you experienced a
revolution, in many ways perhaps even more
fundamental, than the one in the ’60’s and ’70s,
and you experienced very quickly its counter-revolution.
Now, I just want to say that because the more you read about
Reconstruction, the more it seems to me you
find serious writers on Reconstruction,
historians or otherwise, and not a lot of popular
writers and journalists have discovered Reconstruction.
We’re going to read a book by one of them, Nick Lemann,
who’s the Dean of the Journalism School at Columbia,
who in quite good ways fashions himself a historian.
He always says he’s not a real historian,
blah-blah-blah-blah-blah, but he did pretty good research
for this book on violence, largely in Mississippi in 1875,
but he’s using it as a window into the counter-revolution
you’re soon to be reading about. But most people who write about
this period now tend to do it in tones of a kind of a requiem;
a requiem, a tragic mode, a mode that is always saying
what might have been, what was attempted,
what was aimed for, but then failed,
fell apart; what high aspiration,
but God they couldn’t quite do it.
And it is a national requiem, in a sense.
Somebody should write that symphony, the Reconstruction
Symphony. We need a Beethoven for that,
and he needs to be really depressed one day. But that doesn’t mean it won’t
be great and we won’t learn from it, feel from it.
All right, back on the ground. I got in some cheap shots on
Andrew Johnson before we left the other day,
and they were that, cheap shots;
no apologies. But Andrew Johnson’s,
of course, a key player here. He comes to the presidency
because he’s Lincoln’s running mate, he and his office saying
he’s going to make treason odious.
And some Radical Republicans were quite fond,
initially, of that approach, but it quickly,
quickly changed, and here in a nutshell–you’ve
read this now in Foner, you’ve all gotten up through at
least the first four chapters. And by the way,
I’ve now visited at least three sections, and I’m enjoying it.
I wish they weren’t just 50 minutes.
You just get going and–of course this just gets going and
then–you’re glad we’re out of here in 50 minutes I’m sure.
But back to Andrew Johnson. He was, above all else,
an ardent States’ Rightist. He did not support Secession.
Now you can be a States’ Rightist, you can believe that
power should always remain in the hands of the state and still
not believe in the right of Secession.
And he was one of those. He believed secession was
political suicide for the South, and lo and behold he got that
one right. He had a strong attachment to
the American Union. He was a Unionist,
and a patriot in that sense. He had a hatred also of the
Southern planter class because he didn’t grow up in it.
He was a poor boy who made good; had a huge chip on his shoulder.
He was brilliant at a certain kind of politics,
which was East Tennessee stump politics.
Andrew Johnson, it was said,
could crawl up on the back of a wagon and hold an audience for
two hours, in East Tennessee. He didn’t very easily convert
that style and that talent at local stump politics,
however, to the much broader world of pragmatic negotiation
of Washington or the presidency. He’d held every kind of office
you could hold. He’d been mayor of Greenville,
Tennessee; he’d been a state senator or
state legislator; he’d been governor of Tennessee.
He was then elected Senator from Tennessee and then once
again appointed the wartime Governor of Tennessee by Abraham
Lincoln in the midst of the war. He’d held every level of office.
He’d never been anti-slavery. He saw the end of slavery as a
misfortune for the South, something that had to be
accepted as a verdict of war. But Johnson had one essential
slogan for his approach to Reconstruction,
and if you can remember that slogan you in essence have his
point of view: the Constitution as it is and
the Union as it was. The Constitution as it is and
the Union as it was. Don’t revise the Constitution.
He would accept the Thirteenth Amendment, the end of slavery,
because that’s part of the verdict of the war,
there wasn’t any way around that, but he never accepted the
Fourteenth and Fifteenth Amendments,
and he worked vehemently to destroy the Fourteenth
Amendment, or at least he worked vehemently to urge states not to
ratify it. Now, his approach to
Reconstruction, once in office,
was essentially this. He took Lincoln’s lenient plan,
The Ten Percent Plan, and he went another step
further in its leniency, or some say several steps
further. Instead of saying he wanted ten
percent of the voting population of the Confederate states to
take loyalty oaths, form a government,
come back and so forth, he simply converted ten percent
to, quote, “that portion who are
loyal.” Any portion,
wherever may be two or more are gathered, will have a loyal
government; that portion who are loyal.
Now, he added one exception to the pardons, however.
You remember people were going to get pardoned,
lieutenant and above, and so forth–I mean,
lieutenant and below in the Confederate forces.
He added one exception to the pardons, and this reflected a
very personal interest of his. He would not pardon,
he said at first at least, any Southerner who owned
$20,000.00 worth of property or more.
It seemed like a class appeal. Nobody who owned $20,000.00–
the planter class, in other words,
was not going to get a pardon, no matter what they did during
the war; if they were rich they weren’t
going to be pardoned, well at least until they
applied for it, and the application had to be
personal to the President of the United States.
Now, this set in motion, in 1865, a bizarre process.
He promised clemency but only after they made formal written
applications about their new loyalty.
And what literally occurred, by the end of 1865 and
especially in the first months of 1866,
is lines formed at the White House in Washington,
often women. Southern women came to–lines
outdoors, on a daily basis at times–with their written
applications for clemency and pardon,
for participation in the Confederate war effort.
After one year of this process, by May 1866,
Johnson himself had personally signed 7000 such pardons.
He wanted to make them grovel, in other words. Not a wise policy,
but a policy nonetheless. He did put in place,
or tried, some so-called Johnson governments.
Now instead of calling them Lincoln governments they would
be called Johnson governments. And the reason Johnson could
get away with this, of course, as you should know
from reading, is that Congress went out of
session in the summer of 1865–for months,
they went out of session–and Johnson had largely a free hand
to act, and did he ever.
By December of ’65, when a new Congress would
reconvene in Washington, all the states in the former
Confederacy, except Texas,
had met the simplest of criteria, had written new state
constitutions, had found “that portion who are
loyal” to form a new government. And it was very tiny
proportions in some places. In fact, there were no loyalty
oaths, even applied to people. All but one state,
Texas, was ready for readmission to the Union,
under this–what actually Foner calls it in his book–quote,
“amazing leniency of Andrew Johnson.”
The only major demand put upon them was to formally nullify
their Act of Secession. That’s basically all they had
to do. Now, these were whites-only
governments, these were governments formed by former
Confederates, and in many of these states,
of course, they began to rapidly, in the late
summer/early fall 1865, pass what became quickly known
as the Black Codes. You’ve actually got a portion
of the Virginia Black Codes in the Gienapp reader.
Three or four of those laws are there in your reader;
read them, with some care. These Black Codes mirrored the
old Slave Codes. They explicitly denied the
right to vote to blacks, the right to serve on juries,
the right to hold office, the right to own property.
There were all kinds of restrictive vagrancy laws
passed; pass laws passed,
where blacks could be at any given point in time,
with or without a pass. And in this newly reconstructed
Johnson approach to these states, there was a great deal
of legislation already flowing from some of these new state
legislatures meant to directly obstruct the work of the
Freedmen’s Bureau. The counter-revolution folks
began almost as soon as the war was over, as soon as
ex-Confederates could find their way into power.
And did they ever. Part of what went on here in
the Northern mind–now let’s remember, the blood of the war
is not entirely dry–but part of what was simply going on here in
the Northern mind as they witnessed this,
and as these new states now sent their representatives and
senators, after Fall election, back to Washington,
some of them literally wearing their Confederate uniforms.
And from Georgia came no less than as the new U.S.
Senator from Georgia, Alexander H.
Stephens. A year ago he was the
Vice-President of the Confederacy who had spent six
months in a Charlestown jail in Massachusetts,
allegedly arrested for his treason against the United
States, but released. And as they began to arrive in
Washington, it was this kind of insolence on the part of
ex-Confederates that in some ways began to stimulate what we
will call Radical Reconstruction.
Radical Reconstruction is a plan.
And Foner’s right on that. He said one of the reasons that
this cadre of Republicans succeeded is because they really
did have a plan. If there’s a revolution going
on and something’s got to be redone about your country,
go to the meeting with a plan. James Madison did that,
by the way, at the original drafting of the Constitution,
and he got most of what he took.
But they came back to Washington with ex-Confederate
generals, colonels, members of the Confederate
Cabinet and the Vice-President of the Confederacy.
Jeff Davis couldn’t get elected in Mississippi yet because Jeff
Davis was still the only ex-Confederate still in jail.
He will never be formally indicted.
He spent two years at Fortress Monroe, in a prison,
in Virginia. Tremendous mythology has gone
around that story that he wasn’t fed properly,
that he was mistreated, that he got ill and wasn’t
given medical attention, virtually all of which is
nonsense. He wasn’t terribly well at
times but it wasn’t because he didn’t get medical attention.
By the time the United States Government, under the Johnson
Administration–in fact Johnson wanted absolutely nothing to do
with trying Jefferson Davis–but by the time they even got around
to finally formally considering it,
they had wasted so much time that Jefferson Davis will
finally be formally released in the spring–April to be
exact–of 1867, two years after his arrest.
And just to show you the harbingers of reconciliation in
the political culture, the people who paid his bail
were all Northerners, some of them quite famous.
Horace Greeley, the great editor of the New
York Herald-Tribune and the former abolitionist,
although a strange and mercurial character by now,
put up the most amount, and none other than Garret
Smith–the former radical abolitionist from upstate New
York, who checked himself into an
insane asylum after John Brown’s raid–paid most of the rest of
the bail. And Jefferson Davis would be
released, April 1867, to a cheering crowd in
Richmond, Virginia. He would go on to write;
to live in the South, of course, and to write the
longest and most turgid, the most overblown personal
memoir about a failed political movement in all of history;
about 1300 page memoir, basically all arguing that
secession was right and the war wasn’t about slavery.
Enough on Davis for the moment. But back to Washington.
When these new state governments send their
representatives to Congress, beginning of December,
that’s a Congress with an obvious Republican majority,
and they absolutely called a halt to the whole process.
Here were all these people from the South coming to take
the–not loyalty oaths–but the Oath of Office into the U.S.
Congress, and they were stopped, some of them physically
at the door, and told to go home.
And the Republican Party now began to try to wrest control,
and they did wrest control of Reconstruction away from Andrew
Johnson. And from that day forward you
had the beginnings of a growing Titanic constitutional political
struggle between president and Congress–they are not of the
same party, to say the least–that will
result in Andrew Johnson’s impeachment.
Now, to the Radicals for a moment. They established what was known
as the Joint Committee on Reconstruction.
There’d never been such a committee really in American
history before that date. This was to be a committee of
members of both houses of Congress, but they made no
pretence to bipartisanship. It had 15 members,
12 of whom were Republicans and three Democrats.
They said thank you very much, we don’t need any more.
Now, they established this joint committee–it began to
meet in January of ’66–the purpose of which was to
investigate what was going on on the ground in the South,
to investigate the necessities and needs of Reconstruction,
to investigate the further needs of the Freedmen’s Bureau,
and to recommend to Congress what legislation ought be passed
to reconstruct the country. They held massive hearings,
the largest such Congressional Hearings in American history to
that time. They saw 144 witnesses over
about two months, including Robert E.
Lee himself, who came up from Richmond to
testify; testifying essentially under
orders, and he still was under House Arrest,
he didn’t really have a choice. They asked hundreds of
questions, but you could boil them down to these.
They asked about the treatment of freedmen in the South.
And their witnesses were all kinds of people,
Union officers, Freedmen’s Bureau agents,
some white Southerners, for sure, some famous,
most not. They asked lots of questions
about the levels of loyalty and disloyalty.
What were the political attitudes of Southerners?
They were really trying to find out “what would white
Southerners actually do if we did that?”
Now, this was absolutely crucial because we’ve long–I
wouldn’t say assumed–but we’ve long wondered,
and there’s a lot of evidence for this, that had the white
South in its prostrate state, in its state of destruction and
defeat, had they truly been put under an honest-to-God,
legitimate, near total occupation, the assumption is,
among a lot of scholars, that they (being the white
South), would’ve accepted it, because they didn’t have any
choice; they had virtually no choice at
all. And some of their leadership
was already in exile. I think I mentioned the other
day about 8 to 10,000 ex-Confederate leaders,
mostly military people, had left the country,
at least temporarily. Anyway, they’re trying to test
what Southern attitudes are. Thirdly, they ask lots of
questions about the needs of the Freedmen’s Bureau,
what ought this Bureau do? What about schools?
What about food? What about hospitals, et cetera?
And then they would ask about the need for troops and the need
for enforcement. Now, you may know from reading
Foner by now that the reduction in the Union Armies was
overnight, from nearly a million men in
arms to a mere 15 to 20,000, by 1866;
and a fair portion of those are being sent west to fight
Indians. And one of the great deep myths
about the melodrama of Reconstruction,
or the Lost Cause version of Reconstruction over the years,
is that the South was put under this military occupation,
“bayonet rule,” as it so often was called.
About the only time a Union soldier fixed a bayonet,
in all the Reconstruction years,
was when they put their bayonets on, in part to defend
themselves and go after the people who were murdering and
massacring black people in Memphis and New Orleans in 1866.
The vast majority of Union troops throughout the
Reconstruction years, in the South,
were simply in garrisoned forts, on the coastlines,
occasionally in cities. The conclusions of this report,
the Joint Committee’s Report, which was by the way chaired by
William Pitt Fessenden of Maine, a moderate Republican senator,
but a key figure. He had a lot of prestige.
He’d been in the U.S. Senate forever.
He was an old-time Republican but a moderate,
who had come to see the verdict of the Civil War,
the destruction of slavery and the challenge to make it good.
Their conclusions were essentially this,
and they actually used this word, that it would be,
quote, “madness” to let ex-Confederates run the new
Southern state governments; madness was the word used by
the Committee’s report. Secondly, the Johnson style of
leniency toward Reconstruction–and they had
various ways of putting this and various conclusions they drew
from this–was foolish. And the third and last,
but not least, they made a whole series of
recommendations for what they called safeguards that would be
necessary to guarantee security in the South and the beginnings,
at least, of a new political regime in every state.
Now, it is that Republican majority Congress of the winter,
spring and summer of 1866, that began to first pass the
great legislation of Reconstruction.
And if you want to see Reconstruction as this rise and
fall requiem–and why not–this is the rise.
If Reconstruction was a kind of bright, shining moment,
as Du Bois once called it in Black Reconstruction in
1935, this was its moment,
1866 and ’67, when the actual system by which
the Southern states would be readmitted to the Union was put
in place. The first thing they passed was
the Civil Rights Act of 1866; passed Congress in April of ’66.
This was an act of Congress, not a constitutional amendment;
therefore it didn’t require a two-thirds.
It was the first statutory definition in American history
of the rights of citizenship. It was potentially a profound
change in federal state relations.
This Republican Congress and its leadership,
at least, was going to do some very new things with American
federalism. Now, it had a bunch of flaws.
It gave full citizenship to all Americans, regardless of race,
creed or color; it said that,
the first time ever, in our history.
We’d never had a citizenship law.
It had never been legally determined who was a U.S.
citizen. But citizenship had always
implied whiteness, and maleness.
It now had at least a definition.
The problem in it, of course its flaw,
and there would be a flaw and a compromise element in almost
everything passed in these years–nothing came out pure,
out of these terrible debates over Reconstruction–its great
flaw was that it was directed against public but not private
acts of discrimination. I might still discriminate
against you any way I wish privately, with my business,
with my private facility, with my school,
with a lot of ways, but in terms of public/civic
rights, it at least put in place the
beginnings of the idea of citizenship rights.
Secondly, this Congress renewed the Freedman’s Bureau.
They gave it a new life for another year.
And they did this–and the Civil Rights Act,
by the way–over the rapid and quick veto of Andrew Johnson.
What set in as early as April of 1866 was the Federal
Government by veto. Congress would pass a law,
whether it’s the Civil Rights Act, the renewal of the
Freedmen’s Bureau, and numerous other
things–eventually all four of the Reconstruction Acts in early
’67–and Johnson would veto them.
Andrew Johnson, in one and a half years,
will issue more presidential vetoes than all American
presidents before him put together.
Not the way the thing’s supposed to work,
but it’s the way this was working.
And then, for six months, the Congress debated–and let’s
remember, there’s still about a one-third of this Congress that
are Democrats. I don’t know how close I can
get you to this, but I’m going to try,
at least to Section One. Oh dear.
I don’t know, can you read that? Good.
Because that’s the country you live in.
Oh, I’m sounding so pretentious today.
But you know what? The United States was invented
at Philadelphia in 1787, but in many ways–and Americans
still don’t get this, don’t understand it,
don’t know it–the country you actually live in was invented in
1866, in Washington,
D.C. It’s the country of the
Fourteenth Amendment. The Fourteenth Amendment has
five parts. It’s the first one,
the resounding one, the one authored by John
Bingham, a staunch, Christian abolitionist from
Ohio, went to a tiny little college called Franklin College. It is that first clause that
actually revolutionized, if you want,
the revolution. The Fourteenth Amendment was in
effect the Republican leadership’s response to
emancipation. Well of course the Thirteenth
Amendment is too, but the Thirteenth Amendment,
you’ll remember, has a second clause that said
“Congress shall pass all appropriate legislation,
to enforce it.” All right, now how do you
enforce the end of slavery? What is the end of slavery
going to mean? Or, as you were discussing in
sections yesterday, and as Foner’s chapter
addresses, what did freedom mean?
What the amendment did is it enshrined birthright,
and it enshrined at least two things into the Constitution.
Even though they’re ill-defined at first and we’re still
fighting over them right now, in probably two-thirds of the
courts in the United States, as we speak.
And by the way, about two-thirds of everything
in an American Case Law Book is a Fourteenth Amendment
case–those gigantic, God awful thick case law books,
if you ever open one–about two-thirds of everything in
there goes through the Fourteenth Amendment.
Anyway, it enshrined birthright citizenship, number one;
and number two, the beginnings of the idea of
equal rights, into the Constitution.
It took six months of debate. It was passed finally in June
of 1866. These were the new framers;
if you want, the new founders. The first set of challenges
they faced, they’ve settled pretty–not easily–but they
pretty much settled in clean and clear language.
Those first three challenges were number one,
to define citizenship and who holds it.
Now, the Civil Rights Act had already begun to do that;
this is going to go a little further.
Two, they had the problem of repudiating Confederate war
debts. What do you do with all those
debts that a Confederate state had entailed,
toward Great Britain or Spain or France or anyone else?
The Federal Government was hereby saying in a
Constitutional Amendment that any debt the Confederacy had
entailed, to any government,
any people, any bank, anybody, anywhere–that the
United States Federal Government would never pay them.
But they were also here trying to head off, of course,
the demands for compensation for loss of slave property,
as a Confederate debt. And three, they had to face the
question now that every Reconstruction plan to face–and
Lincoln had it in his and Johnson had it and even the
Wade-Davis Bill had it–and that is which ex-Confederates are
going to get disqualified or disfranchised?
How many ex-Confederates? What level of disfranchisement
would there be from office holding, or for that matter
citizenship rights at all, for ex-Confederates?
These three they settled, but there were three others
they did not settle so easily, and they were the extent of the
right to vote, for black men.
Would this amendment declare the right to vote for black men
everywhere, or only in the South, only in ex-Confederate
states? The inconvenient and terrible
problem on this one, of course, is that the very men
writing this bill know that in their own northern states black
suffrage is not popular, to say the least,
and most northern whites still don’t want black men to vote,
especially in their own states. The evidence of that was so
clear, the State of Connecticut, this state, in 1865,
after the war was over, held a special referendum and
overwhelmingly voted down the right to vote for black men in
Connecticut. Secondly, they had to settle
the extent of civil rights declared equal before the law.
How equal? Which rights?
Where? That first section of the
Fourteenth Amendment ends with the famous language of equal
protection of the laws. No one shall be deprived–“no
state shall deprive any person of life, liberty or property
without due process, nor deny any person within its
jurisdiction the equal protection of the law.”
And then lastly they faced the vexing problem now–and you may
have forgotten all about this, it’s easy to forget it–of how
to reapportion representation of the so-called slave seats.
Those are the extra congressmen that Southern states had been
given from the 1790s on, through 1860,
because of the three-fifths clause in the Constitution.
The estimate is that between 1800 and 1860,
the slave states in the South, depending on when you take the
snapshot, received from twenty to thirty
additional congressmen, in the House,
because of the three-fifths clause;
because three-fifths of black people were being counted for
representation. Now what happens is you’re
going to count all black people. The estimate was that the
Southern states would get an additional eighteen more
congressmen. So when these new states come
back into the Union they’re going to have more congressmen,
more power, more clout. What are you going to do with
that? Now, the key players in
this–and I want to spin through this as quick as possible–the
key players in this were, on the one hand Thaddeus
Stevens, as a kind of visionary and radical voice.
Stevens would’ve had this amendment go further than it
did, especially in Black Suffrage.
Probably its greatest architect–two of them
really–were John Bingham of Ohio and Lyman Trumbull of
Illinois. They’re unsung heroes.
I bet you don’t know anything about John Bingham and probably
nothing about Lyman Trumbull. They’re not famous.
They should be. Bingham wrote Section One.
Lyman Trumbull wrote the ’66 Civil Rights Act.
He actually wrote the Thirteenth Amendment,
and he will write other parts of the Reconstruction
legislation. John Bingham will stand up day
after day in the Congress and will argue that Emancipation had
finally forced the United States–this is the way he
always put it–to apply the Bill of Rights to everybody.
And he argued, in his words,
that what they were really doing now, were federalizing the
Bill of Rights. Now think about it.
American history had always had the Bill of Rights.
Just tick them off, the first ten Amendments to the
Constitution; your right to religion and your
right to free speech and your right to assembly,
and on and on and on. But it had never been applied
to all Americans. There’d never even been an
assumption it applied to all Americans. Well, there were others.
Charles Sumner, to some extent; Robert Dale Owen of Indiana,
the old utopian community leader, was quite a visionary of
this as well; and some others.
But it’s really a handful of six or seven people,
who wrote the Fourteenth Amendment.
Now, they faced tremendous opposition.
Day in and day out Democrats would get up and say that all
the Fourteenth Amendment really was trying to do is to get white
and black people to marry each other.
They trotted out the worst of white supremacy and the worst of
racism to try to trash the vision of the Fourteenth
Amendment. It’s going to have effect
eventually in a larger American politics, rest assured,
because the ’68 presidential election is going to be a
referendum on this, and it will be,
without question, the most white supremacist,
racist election in all of American history;
so unsubtle and so blunt that it will surprise you,
I suspect. The central compromise in the
Fourteenth Amendment–I’ll let you read the rest of its
provisions–but the central compromise was actually on black
suffrage. As I said, there was this
uncomfortable fact that most white Northerners didn’t want
black people to vote, in the North.
So they left any enforcement of the right to vote to the states. They’re going to codify the
right to vote for black males–and by the way it’s the
first time the word male got into the U.S.
Constitution–a very complicated, important
amendment, and it’s going to cause a terrible explosion and
actually a bad train wreck between the Women’s Suffrage
Movement and the old abolition movement,
black and white men, and it’s going to cause
Elizabeth Cady Stanton and Susan B.
Anthony and others to basically bolt from the black suffrage
movement, and even the whole Civil Rights movement,
such as it was during Reconstruction,
and go off and fight their own crusade.
That’s another long story we’ll return to.
So instead of an outright guarantee of the right to vote,
everywhere, for blacks, men, the final version left
control of suffrage to the states.
It did though, in one provision,
penalize if a state, to come back into the Union,
denied the right to vote to black men, it would have its
representation in Congress reduced to the proportion of the
black males in their state. Now that’s not going to scare
many northern states because they don’t have large black
populations. And actually they’re not going
to be part of that provision because they never seceded from
the Union. But the key thing here is that
the equality genie, this language of equal
protection, this definition of citizenship
rights, it had never happened before, the equality genie was
now out of the bottle, and for better or worse it
could never be put back. The Equal Protection Clause is
the most malleable provision in the Constitution.
It has been used to support or advance the rights of everyone,
and everything, every kind of organization you
can imagine, cities, states, corporations,
immigrants, women, gays and lesbians,
anti-gay and lesbian movements, students, labor unions,
anti-labor union movements. It has advanced tolerance and
intolerance. It has advanced affirmative
action and the anti-affirmative action crusade.
The Fourteenth Amendment is so malleable it can be used by
anyone. It’s the great legal wellspring
of the modern Civil Rights Revolution.
No Fourteenth Amendment, no Civil Rights Movement.
And last but not least, it is the basis of that
dreadful Supreme Court decision in 2000 known as Bush v.
Gore. I didn’t make that up.
Now, in this circumstance, of the passage of the Civil
Rights Act, the passage of the new Freedmen’s Bureau,
the passage of the Fourteenth Amendment, now to be sent out to
the states for ratification, comes the fall elections of
1866. And Andrew Johnson took his
case out on the road. He called it the Swing Around
the Circle. The circle was to be the Union
or–oh, where’s my map? I have a better map here
somewhere. Oops, no I don’t even really
have the whole North on here, sorry about that.
Oh well. In the fall elections of
1866–these were Congressional elections but they’re terribly
important, given what’s going on in
Congress–the ’66 Congressional elections were a referendum on
Reconstruction and they came in the wake of two terrible racial
riots or massacres in the South, which really got Northern
attention. The first was in New Orleans,
the other in Memphis. In both cases they were
essentially police riots. In Memphis, about forty blacks
were killed and over 200 wounded, whole neighborhoods
destroyed; Congressional investigations
launched. In New Orleans the riots or
massacre that was conducted by the white police of New Orleans
against its black community was stimulated by a political parade
of black Republicans in the late spring, 1866.
Before the New Orleans riot was over thirty-four blacks were
killed, about 250 wounded, and hundreds of homes
destroyed. This was the state of chaos and
reaction, already going on in the South.
And you don’t even really have legitimate functioning
governments yet. So out on the hustings that
fall the campaign appeals were on the one hand by Democrats to
prejudice and racism and leave the South alone.
Democrats are out on the hustings blaming Republicans for
causing that violence in the South–if you give black people
the right to vote, if you let black people move
too high, too far, too fast, et cetera,
et cetera, et cetera. And the Republicans attacking
Andrew Johnson, for everything,
including his drunkenness at his inauguration,
but most importantly for his insolence and obstinance and
obstruction to Reconstruction. So Johnson took his case to the
people. He went on a long tour–he
called it the Swing Around the Circle–all over the Northern
states, up through New England,
all across the Midwest, and he tried to be the old
stump speaker from East Tennessee,
and it totally backfired on him. He demanded that Ulysses Grant
go with him; he demanded that William H.
Seward go with him, the Secretary of State,
and they reluctantly joined him.
They were, after all, serving him as president.
Grant hated this. Grant didn’t even like politics.
He’s soon going to have to change his tune on that.
But what happened, in essence, is that Andrew
Johnson went out and caused a gigantic embarrassment,
for himself, for Grant, and for others.
He took out hundreds and hundreds of new U.S.
flags, that had thirty-six stars on them,
and not the twenty-five, without the eleven seceded
states, and he would pass out the flags.
And everywhere he went he would make the same speech,
over and over and over. He would say you always begin
by saying, “I stand on the Constitution.”
And then he started talking about the traitors in Congress,
he called them traitors, Stevens and Sumner and Bingham
and Fessenden, in their own states.
Now that wasn’t very clever. He even engaged in all kinds of
undignified displays and certain kinds of vulgarity.
Crowds began to react to him. He’d give the same damn speech
town after town after town after town.
It’d be reprinted in the paper and before he could get up and
say, “I stand on the Constitution,”
the crowd would start saying, “Yeah, yeah,
yeah, you stand on the Constitution.”
Crowds started shouting back at him saying, “Shut up” and “Stop”
and “We’d rather hear Grant,” and chants of that sort. It became, in some instances,
by the time he got to the Midwest, into Indiana and
Illinois, impossible for him even to hold an audience. Then finally he started to
compare himself to Jesus on the cross;
never a good idea. [Laughter]
He was being crucified by the radical, traitorous wing of the
Republican Party and Congress. And then he invented a story
that he had been the one called Judas, and he worked that,
he worked the Judas metaphor, about as often as he could.
He was finally shouted off the stage in Pittsburgh and he just
took the train and went home. He also kept referring to this
magical circle of the Union; magical circle of the Union,
and it became a parody. And in the fall elections,
the people of the Northern states returned an overwhelming
majority of Republicans to the Congress;
a slightly more than two-thirds veto proof majority,
to the Congress. And it will be that Congress,
once it convenes in December ’66 and into the next winter of
’67, that will put in place the
first Reconstruction Act, and then three subsequent
Reconstruction Acts to enforce the first.
And that first Reconstruction Act we will come back to next
time, because it’s crucial. But it set up here–and you can
see it on this map–a system by which the South was to now be
divided into five military districts,
two or three states in each, the ex-Confederacy divided into
five military districts, each commanded by a
major-general. That major-general was to have
control over elections and electoral boards,
and a sufficient body of troops,
it said, to enforce the electoral process in the South.
And there was to be, according to that first
Reconstruction Act, as we’ll see,
a high level of Confederate disenfranchisement.
This now will be the Republican Party taking control of
Reconstruction, of trying to plant the
Republican Party into the South now with African-American votes,
and they will succeed in creating Republican control,
legislatures, governors’ offices,
in all eleven of the ex-Confederate states–at least
at first–and in some of those states we’ll see some remarkable
experimental democracy put in place,
unprecedented, to that time,
in American history. Unfortunately,
of course, what will also be stimulated and put in place is a
deeply embittered reaction in the white South,
to now do whatever it took–by any means necessary–to destroy
the Republican party, to destroy African-American
autonomy, to destroy the African-American right to vote.
And it will be organizations like the Ku Klux Klan,
which had been around at least since 1866 but are going to
explode with fury in 1868. And between 1868 and 1871,
the Klan and its many, many, many imitators will
engage in a kind of violence-as-real-politics,
in an attempt to take back control of the political South.
And I’ll leave you there hanging, with good will.

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