American History Series: The Civil Rights Act of 1866

Editor’s Note: This is a work in progress.

A few days ago, David French brought up the Reconstruction Amendments in an article called “Embracing Liberty in No Way Means Embracing Moral Relativism.”

“First, the protection of individual and associational freedoms — as defined by the Bill of Rights and the Civil War Amendments — is not an act of moral relativism. It’s a powerful moral affirmation of the equal dignity and worth of citizens before the state. In other words, the protection of liberty isn’t mere relativism or proceduralism, it is — in fact — a fundamental facet of the “politics of the common good.” The disestablishment of religion is not a neutral act. The protection of free exercise is not a neutral act. The protection of due process is not a neutral act. The declaration that persons in the United States enjoy “equal protection of the laws” is not a neutral act.”

I found this to be an interesting passage because it struck a chord in the context of my current historical research. I’ve been reading Eric Foner’s new book The Second Founding and he makes a persuasive case that there was a constitutional revolution in the Reconstruction era that effectively created a Second Constitution. Before the War Between the States, American citizenship was derived from state citizenship, blacks had “no rights which the White man was bound to respect” under the Dred Scott decision, there were sharp distinctions between various categories of rights (natural, civil, political and social) and the idea of equality before the law was “not known at all.” The federal government had no power to enforce the liberal ideal of equal rights between American citizens within the states.

Yesterday, I responded to the Daniel E. Burns article in National Affairs in which he noted that historically speaking liberal practice has hardly always conformed to liberal theory in the United States:

“But liberal theory has spectacularly failed to live up to this promise. It is incapable of accounting for some of the most visible features of liberal practice. In many cases, it flatly contradicts them.

For example, federalism as Americans know it has no place in liberal theory. Liberal theory demands the strict sovereignty of the entire (unitary) populace. No one has ever shown how to reconcile this demand with a partially sovereign national union under a government of enumerated powers, where the remainder of sovereignty is reserved to 50 subordinate communities whose governments have no jurisdiction over one another. Today’s defenders of liberal theory tend to elide this difficulty by relying on a most embarrassing confusion of “limited government” with “government of enumerated powers.” Limited government is indeed a central feature of all liberal theory from Locke on (and in fact goes back to Hobbes). But a federal government of enumerated powers is an American innovation at odds with Locke’s whole view of government. Anyone who confuses the two implies that the federal government is our only government?—?a notion especially strange on the lips of American conservatives. …”

The Founding Fathers created a White Republic.

It was a federal republic of sovereign states. The federal government derived its power from the people of the states. Robert E. Lee was a citizen of Virginia and only by extension an American. There was no such thing as birthright citizenship. The Bill of Rights restricts the power of the federal government. The Tenth Amendment reserves all powers not granted to the federal government to the states.

In the original constitutional architecture of The First Founding, there was plenty of room for illiberalism. In fact, the entire social order of the South was based on plantation slavery. Slavery was established by state law and was preserved by the Constitution which provided for the capture and return of runaway slaves. There were once established state churches. There was no such thing as women’s suffrage. The rights of women were legally subsumed by their husbands under coverture. It was a crime in the South to circulate abolitionist literature. Slaves were forbidden to consume alcohol or to own firearms. The South was a White Man’s Country because only Whites were citizens of the Southern states.

Mainstream conservatives like to pretend that the liberal state was created by the Founding Fathers. It was really created during Reconstruction. It was only during this period when the defeated South was prostrate, occupied by the Union Army and unrepresented in Congress that Black Republicanism was ascendant and was able to redefine America to force liberalism on the unwilling states.

The following excerpt comes from Eric Foner’s The Second Founding: How The Civil War And Reconstruction Remade The Constitution:

“Without the South being held in what many Republicans called the “grasp of war,” the party would not have enjoyed the two-thirds majority in both houses of Congress necessary for the adoption of the Fourteenth Amendment. But the Republican party was divided into wings that did not always agree on the issues confronting the nation. Radicals, the most prominent of whom were Thaddeus Stevens, the party’s floor leader in the House, and Senator Charles Sumner, the politician closest to the black community, saw Reconstruction as a once-in-a-lifetime opportunity to purge the republic of the legacy of slavery and guarantee that all Americans enjoyed the same rights and opportunities, secured by a powerful and beneficent national government.

For decades, those who would later become Radical Republicans had defended the unpopular causes of black suffrage and equal citizenship. Reconstruction, in their view, meant completing “the great anti-slavery revolution,” and laying to rest what Stevens called the “political blasphemy” that the United States was and should remain a “white man’s government.”

So, this was the point when the United States really went off the tracks. It went from being a Republic to an Empire under Abraham Lincoln. During the Reconstruction era, the Radical Republicans empowered the federal government to impose classical liberalism on the country through the Reconstruction Amendments, the various Force Acts and federal civil rights laws.

“Nevertheless, on January 31, 1866, the first version of the Fourteenth Amendment, dealing only with the question of representation, received the required two-thirds majority in the House. In the Senate, however, it encountered the formidable opposition of Charles Sumner. In a speech that lasted two full days and took up forty fine-print columns of the Congressional Globe, and in a second speech a few weeks later, Sumner attacked the proposal as a “compromise of human rights” because it recognized the authority of the states to limit the suffrage based on race – an unacceptable concession after “a terrible war waged against us in the name of states rights.”

Black Republicans like Charles Sumner and Thaddeus Stevens are responsible for creating the liberal order:

“The bill declared all persons born in the United States, other than “Indians not taxed” (considered members of their own tribal sovereignties, not the nation) and individuals “subject to a foreign power,” to be citizens of the United States. This for the first time put into national law the principle of birthright citizenship, which, in somewhat different wording, which would make its way into the Fourteenth Amendment. The Civil Rights Act, in other words, severed citizenship from race, as abolitionists had long demanded, and abrogated the Dred Scott decision. It applied, however, not only to blacks but to virtually everyone born in the country. It went on to enumerate for the first time all citizens “of every race and color” were to enjoy to “make and enforce” contracts, own property, testify in court, sue and be sued, and “enjoy the full and equal benefit” of laws “for the free labor, necessary to compete in the economic marketplace. No law or “custom,” the Act declared, could deprive the citizen of these basic entitlements, “except as a punishment for crime.”