MOOC | Reconstruction and the Constitution | The Civil War and Reconstruction, 1865-1890 | 3.3.2
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MOOC | Reconstruction and the Constitution | The Civil War and Reconstruction, 1865-1890 | 3.3.2

October 8, 2019


>>So as I say, there was this political basis for his racism, that he thought that the black vote, if it came about, would simply be manipulated by the planters to the detriment of the yeoman farming whites. That alliance would rule the South and it would be just like before the Civil War. He somehow saw slavery as an alliance of planters and slaves from which the yeoman and the poorer whites suffered. Well, the problem…that is true, it’s all true, but the fact is that Johnson quickly changed his mind, you’ll see in a minute. Within a few months he was allying himself with the planters. His effort to empower the yeoman farmers didn’t last very long. And that’s the big mystery of Johnson. Why is it he comes into power saying, we’re going to keep these planters out of power, and yet a few months later, he’s allied with them. I have a theory, which I can’t prove to you but there is some evidence for it, which is that it was black militancy in 1865, which Litwack had talked about (and many others), which alarmed Johnson, alarmed a lot of white people, and he felt that — because there were these conventions going on, people were seizing land, there were meetings demanding rights. Blacks were not just going back quietly to work, as Johnson wanted. And I think he came quickly to the conclusion that the only people in the South with the power to control the black population were the old planters. The yeoman farmers could not do that. And so that, I think, that’s my theory anyway. You can take it or leave it. Where did I get that theory? It was suggested to me in a dispatch by the British ambassador, Bruce, in Washington to the British government, which — His papers are over in the Oxford University library. And one time I was over there and I decided to look at the dispatches, and it was very interesting. And he basically said the same thing: he had talked to Johnson and he got the impression that Johnson feared the blacks more than he feared the planters, and feared that only the planters had the authority to… But if you said that, you couldn’t very well exclude [the planters] from political participation and office, as he initially wanted to do. But you can take that or leave it. I cannot say that it’s definitely proven. It’s just a plausible theory. Johnson’s approach to Reconstruction was — this is where Stampp says he’s the “last Jacksonian” — were based on states’ rights, which was a very venerable point of view. There was no such thing as Reconstruction. In fact, the states were not out of the Union. Secession was impossible. It was illegal. The states have never left the Union. Individuals had committed treason and leading individuals could be punished. As Johnson said numerous times in 1865, “Treason must be made odious, and traitors…punished.” He later said he wished that Jefferson Davis had been executed for treason. But nonetheless, the states as political institutions had not forfeited their rights. They had the same rights as ever before and therefore, the only job of Reconstruction was to just get governments going in these Southern states. And that’s it. It’s all done. And most of the — in fact, I’d say all of the issues that black people and their allies in the North were raising were state issues, were traditionally state issues: what rights citizens have, who votes. Those are all issues determined by the states before the Civil War. The federal government had nothing to say about who voted or nothing to say about — even who was a citizen was largely determined by the individual states. So Johnson was bringing the pre-war legal situation into the post-war situation, although not totally consistently, because as we will see in a minute, one of the things Johnson demands of the new Southern governments he set up is that they ratify the 13th Amendment to the Constitution. Now what gives the president, if they are really functioning states, what gives the president the right to tell a state they must ratify a constitutional [amendment]? That’s a total violation — a constitutional amendment — that’s total violation of states’ rights. So even Johnson had to act on the reality that the states were not quite in the Union in the way they had used to be. So now Johnson’s position was logical in a constitutional way. The states were still in the Union, therefore they had all their rights, what is the big deal? There were other constitutional theories floating around. The problem people faced in 1865 was this: one, in a sense, was “constitutionalism.” That is to say, people wanted whatever their policy would be to be acceptable under the Constitution, to comport with the Constitution. Thaddeus Stevens said, forget that, they’re conquered provinces and we deal with them that way. But very few people wanted to go that far, as Stevens. You had to somehow… So for many, many years, there were all these articles: well, what was the true constitutional position of the Southern states? It took a British observer, W. R. Brock, years ago in a great book on Reconstruction to make the point, hey, the Constitution doesn’t really apply. The people who wrote the Constitution did not anticipate a situation like this. They did not anticipate 11 states waging war against the rest of the Union. The Constitution is immaterial here. There is nothing in the Constitution that tells you how you should deal with the aftermath of a civil war, because they didn’t anticipate a civil war. The Constitution, said Brock, was a straightjacket. It made it impossible for people to think in a creative way, because they wanted to fit into the Constitution. Or eventually, of course, they would rewrite the Constitution in order to make the Reconstruction policies fit. But certainly nobody proposed just, let’s say, eliminating the states (well, a few Radicals). Well, let’s just get rid of all those states. Let’s carve new boundaries. Let’s have new states so we really wipe the slate clean. But nobody was willing to go that far. There was another constitutional problem that faced Republicans in Congress. Congress meets in December 1865. It’s got a very large Republican majority. They face this problem politically: with the abolition of slavery, the three-fifths clause of the Constitution no longer applies, right? Instead of the black population being counted as three-fifths for purposes of representation in Congress, that is, how many members of Congress each state will have. Remember, originally it was determined by the free population plus three-fifths of the slave population. Now five-fifths, or all of the black population will be counted, which means that when the next reapportionment comes around in 1870, the South will gain a significant number of members of Congress and electoral votes, because from three-fifths to five-fifths is an increase in their population, which determines representation. Northerners did not go to war to increase this political representation of the South. So how do you deal with that? That is another constitutional problem. And then, what should you say, what does give Congress the right to interfere in Southern government? Well, as I have said before, there was the theory of “state suicide,” that the states had just committed suicide by seceding and therefore, they had relapsed to territories. Territory was a familiar position, it’s a familiar situation, so some people thought that was a good way of thinking about it. But most Republicans eventually came to a kind of a murky constitutional position called “forfeited rights.” The states were in the Union, but by seceding they had forfeited some of their rights. This gave the federal government the power, the authority, to kind of reshape them for a while, until they would get all of their rights back. And many of them latched onto a particular clause of the Constitution saying that the federal government shall guarantee to each state a republican form of government. The guarantee clause. To guarantee a republican… Now, what was a republican form of government? Obviously, that could be determined by what your definition is. In other words, a state could not set up a monarchy, right? If New York decided to say, hey, Cuomo’s the king. He is the king, [laughter] but you know, not officially. He acts like that anyway. Cuomo’s the king of New York. Well, the federal government could actually intervene to say, no, no, he’s not the king. Sorry, no kings around here. The guarantee clause makes that possible. Does a republican form of government require, let us say, equality among the citizens? Well, they had slavery and people didn’t think it was [not] a republican form, although the definition changes, and there were many Republicans who thought, well, this gives us a framework for thinking about remodeling the South within the constitutional framework. But I think the main point is: you cannot find a simple constitutional answer to the question of what to do about Reconstruction, because the Constitution didn’t envision this problem.

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