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CHAPTER 1
What Were They Reconstructing?
The Duty of Congress, 1865
When the Thirty-Ninth Congress convened on December 4, 1865, the great question facing the U.S. Senate and House of Representatives was how to rebuild the nation. During the war, Congress had addressed Reconstruction policy, but victory was the paramount concern of the government. Now the war was over. On that December day, the Congress met for the first time since Lee's surrender at Appomattox. Reconstruction replaced the war as the top policy priority. The initial movements of the Congress reveal how senators and representatives understood their task.
Immediately after the House of Representatives was organized, the newly elected Speaker of the House, Republican Schuyler Colfax of Indiana, delivered a short address. The subject of his address was Reconstruction policy. The duties of Congress were "as obvious as the sun's pathway in the heavens": "Its first and highest obligation is to guarantee to every State a republican form of government. The rebellion, having overthrown constitutional State government in many states, it is yours to mature and enact legislation which, with the concurrence of the Executive, shall establish them anew on such a basis of enduring justice as will guaranty all necessary safeguards to the people, and afford, what our Magna Charta, the Declaration of Independence, proclaims is the chief object of government — protection to all men in their inalienable rights."
In specifying this obligation, "to guaranty to every State a republican form of government," Colfax quoted directly from Article IV, Section 4, of the Constitution. The "first and highest obligation" of Congress warranted by the Constitution is to guarantee the establishment and maintenance of a certain kind of political regime in each of the several states. Immediately next, he said that the governments of the insurrectionary states were not constitutional. They were not constitutional because they lacked governments that were republican in form. They had deviated from that form of government; they had revolutionized. Following the defeat of the combined insurrectionary states in war, the yet unchanged fundamental political condition of these states encumbered Congress with the duty to exercise its "highest obligation," to fulfill and maintain the constitutional guarantee of republican government.
If the new state governments were to renounce rebellion, their renunciation would not by itself meet the standard of constitutional or republican government. More was expected, and Colfax explained how those states could meet the standard. When Congress enacted legislation reorganizing the state governments so that they met the "chief object of government-protection to all men in their inalienable rights," then those state governments would be regarded as constitutional, that is, republican in form, per Article IV, Section 4. In other words, to Speaker Colfax, the principles of the Declaration informed the meaning of that clause in the Constitution. A government that protects inalienable rights is one that meets the definition of republican. The governments in the insurrectionary states had not met that standard. After Congress successfully discharged its duty, Colfax continued, new loyal members from the former insurrectionary states would take their places in the House of Representatives, "their hearts devoted to the Union for which they are to legislate, jealous of its honor, proud of its glory, watchful of its rights, and hostile to its enemies."
His vision of patriotic unity and loyalty shared by representatives from the reconstructed states would be expected to follow the establishment of true republican government in those states, not to come before it. Colfax linked the states' prospective loyalty, the desired effect, to the successful establishment of republican government, the cause. In so doing, he tacitly linked the cause of those states' disloyalty to the absence of republican governments in those states. Difference between the political regime in and among the insurrectionary states and the political regime in and among the loyal states accounted for national division and disharmony. Composed of dissimilar, geographically separated political regimes, national union could not hold together. The cause of secession and the Civil War rested upon this difference.
The presence and absence of slavery in the different parts of the Union constituted a salient difference between the loyal and insurrectionary states and correlated to a difference in political regimes. The success of Reconstruction was predicated upon first recognizing the regime difference, which might not disappear after the imminent constitutional abolition of slavery. Colfax was pointing Congress in the direction of changing the political regimes of the insurrectionary states before political reunion could be contemplated.
Over in the Senate, Republican Charles Sumner of Massachusetts introduced a blast of legislation. Almost immediately after business began, he presented six bills, one joint resolution proposing an amendment to the Constitution, one concurrent declaratory resolution, and two sets of declaratory resolutions of the Senate. All of his proposed legislation recognized the same problem and the same higher aim that Colfax recognized in his brief speech. Senate Bill 3 was titled "A Bill to Carry Out the Principles of a Republican Form of Government in the District of Columbia." Senate Bill 4 required voters in the formerly rebellious states to take an oath swearing to uphold a republican form of government. Senate Bill 5 was entitled "A Bill in Part Execution of the Guarantee of a Republican Form of Government in the Constitution of the United States." It read, "Whereas it is declared in the Constitution that the United States shall guarantee to every State in this Union a republican form of government ... in all States lately declared to be in rebellion there shall be no oligarchy, invested with peculiar privileges and powers."
Senate Bill 7 was titled "A Bill to Enforce the Guarantee of a Republican Form of Government in Certain States Whose Governments Have Been Usurped or Overthrown." This bill laid out a new plan of Reconstruction, that the rebel states would be held out of the Union and barred from participating in the national government until they could prove to the satisfaction of Congress as well as the president that they had established a republican form of government. The bill required new state constitutional conventions and banned all who took arms against the national government or served in office during the rebellion from electing delegates. To be acceptable, a new state constitution would have to incorporate in perpetuity certain provisions necessary to meet the guarantee clause. Among those provisions was that all future officers of the state would have to take the oath of allegiance to the U.S. Constitution and the prescribed oath to "maintain a republican form of government." The states could not resume their proper practical relation to the Union except by presidential proclamation, requiring the assent of Congress.
Of the two sets of declaratory resolutions, the first set required a majority of electors in the rebel states to vote positively for five conditions of reunion, among which were "the complete suppression of all oligarchical pretensions, and the complete enfranchisement of all citizens, so that there shall be no denial of rights on account of color or race; but justice shall be impartial, and all shall be equal before the law." The second set addressed what was not republican government, namely, governments of states wherein "large masses of citizens who have been always loyal to the United States are excluded from the elective franchise," which would give an "oligarchical minority recently engaged in carrying on the rebellion the power to oppress the loyal majority." The resolutions also ruled out governments of states wherein "a large proportion of native-born citizens ... is left wholly unrepresented."
Within days of convening, the Thirty-Ninth Congress established the Joint Committee on Reconstruction by a resolution of both houses and directed the committee to report on the condition of the insurrectionary states and whether they were entitled to federal representation. The committee report named the kind of government that had developed in the insurrectionary states and contrasted that kind of government with republican government constitutionally required by the guarantee clause: "Slavery, by building up a ruling and dominant class, had produced a spirit of oligarchy adverse to republican institutions, which finally inaugurated civil war." The first step to restoring the insurrectionary states to the Union, the committee reported, "would necessarily be the establishment of a republican form of government by the people." In view of these circumstances, the committee recognized the constitutional duty incumbent on Congress "to guarantee to each state a republican form of government," the report quoting Article IV, Section 4, of the Constitution, as did Colfax and Sumner. The insurrectionary states' governments had to be reconstructed at their foundations, from oligarchic to republican. Reconstruction meant regime change. To strengthen the foundation of republicanism, the committee proposed to amend the Constitution. That proposal became the Fourteenth Amendment, which specified the requirements that a state government had to meet to be deemed "a republican form of government." This aimed at foreclosing the possibility that politically motivated, self-serving arguments that disputed the meaning of republicanism could ever arise again.
These officially expressed understandings of the problem of Reconstruction, and the higher aims of Reconstruction policy to deal with that problem, did not need greater elaboration. The nineteenth-century American audience had heard all this before and would continue to hear it. Before, during, and after serving in the Reconstruction Congress, the Republicans elaborated these views. They presented detailed analyses of Southern political society that complemented and cohered with each other. In their analyses, the oligarchic rulers of the South were the root cause of all the major political difficulties of their national era. The oligarchy was the offspring of domestic slavery, and for that reason they proscribed domestic slavery as a political evil as well as a moral evil.
The Republican-led Union had recently defeated the oligarchy's armies on the battlefield. But they believed that neither the end of the war nor the impending ratification of the constitutional abolition of slavery had sealed the end of the crisis of the house divided. The threat of losing in peacetime the advantages gained for republicanism by war precipitated Sumner's broadside against oligarchy and the speech by Colfax. The aim of Reconstruction policy was to destroy the oligarchic regime politically, thereby forever removing that cause of civil discord and oppression within the Union, and to replant true republicanism in the insurrectionary states. Theirs was an effort to reconstruct Southern government on republican principles. Above all else, that meant the elimination of oligarchic inequality and the substitution of republican equality before the law.
Ultimately, they aimed at the regeneration of American republicanism, which the Southern oligarchy had corrupted for decades, and their achievement of that aim depended upon successful regime change in the South. They regarded their own work in the same way as they regarded the work of the American founders. Both they and the founders were engaged in regime change, from monarchy in the one case and from oligarchy in the other, to republicanism.
When the House of Representatives was heatedly debating what to do in February 1866, Representative Martin Welker of Ohio intervened to call attention to the weightiness of their deliberations. He repeated the refrain that became a watchword of Reconstruction Republicans, "make haste slowly," that is, to measure carefully every step but to act decisively. Theirs was a unique charge. The current of events had handed them the opportunity to purify the Republic in all of its parts. Finally, freed from the corrupting power and influence of the crushed oligarchy, American statesmen faithful to the principles of the founding could extend those principles everywhere in the nation. If they failed in that duty, the oligarchy might return to power.
The perpetuity, the very life of the nation, is now at stake. No graver or more responsible duties ever devolved on an American Congress than are now upon us. This is the time and this the occasion to settle for all time in this country the great ideas and principles lying at the foundations of our noble structure of government. Let these foundations now be made strong, that in coming time the winds and storms of rebellion and revolution may beat in vain against the grand fabric erected thereon. Our fathers made this for a free Government; one to which the persecuted and downtrodden of the world might fly and find secure asylum and equal rights. In the short period of less than a century, which is but a day in the life of a nation, the grand idea of our fathers was so far forgotten and departed from that we held four million of God's creatures as the brutes of the field to be sold in the market, and their unrequited toil used to nurture and support a purse proud and haughty oligarchy of oppressors in the land. Let us now make it what our fathers intended it to be, and secure to all their God-given rights, secure equal and exact justice to all men. To accomplish this we must not be in a hurry with the work.
The next day, on February 8, Senator Henry Lane of Indiana noted that events had placed the Republican Congress in the position of the republican fathers, as founding statesmen. Holding that trust, Lane exhorted them to refound the American Republic. He asked:
What is, under Providence, the sublime mission now devolved upon the Congress of the United States? "To break every yoke and let the oppressed go free;" to batter down prison walls and prison bars; to declare the equality of all men before the law, as they are equal before God. This is the grand mission, which is now upon us, which we may not avoid or evade.
And, Mr. President, history is continually repeating itself. After three quarters of a century, after we have run the round of long outrage and oppression against the poor African, to-day we have come back to the proud stand-point where our ancestors stood when they gave utterance to that proud, that noble enunciation which shook the despotisms of the world, that "all men are created equal," have inalienable rights. After making the whole circle of history — it has taken us seventy-five years — we have come back to the proud position of the fathers, and we stand upon that principle, and there may stand with safety.
The next month Representative Godlove Orth, also of Indiana, echoed Welker's call to "make haste slowly." Their work, he reminded the House, was "second only in importance and difficulty to the work of the fathers." Taking a pause from the debate, Orth accounted the work of the fathers, the late war, and their own pending work among the most consequential events for liberty in American political history, past and future: "The terrific contest has left its traces wide and deep; the foundations of society in the immediate theater of the war have been broken up; ... the shock has shattered and broken some of the majestic columns of our political edifice; ... the grand old foundation of the fathers, laid strong and deep in the principles of universal freedom and humanity, still remains, ready to receive a superstructure more beautiful in design, more perfect in all its parts; a superstructure which it is the duty of wise statesmanship to erect."
Senator Richard Yates of Illinois also regarded the importance of their work equal to the work of the fathers in the long sweep of human history.
Senators, sixty centuries of the past are looking down upon you. All the centuries of the future are calling upon you. Liberty, struggling amid the rise and wrecks of empires in the past, and yet to struggle for life in all the nations of the world, conjures you to seize this great opportunity which the providence of Almighty God has placed in your hands to bless the world and make your names immortal, to carry to a full and triumphant consummation the great work begun by your fathers, and thus lay permanently, solidly, and immovably the capstone upon the pyramid of human liberty.
The aim of the Republican Congress was to refound the American Republic on the restored principles of the American founding. The Southern oligarchy had contended against those principles upon which republicanism rested. Defeated in war, the oligarchic regime was routed but not dead. Therefore, that regime in the South stood in the way of the highest ambition of their statesmanship and the vindication of the American founding.
(Continues…)
Excerpted from "From Oligarchy To Republicanism"
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