Arkansas Democrat-Gazette

Forgotten war

- GREGORY P. DOWNS

Not many who toasted the American Revolution on July 4 celebrated the 150th anniversar­y of a key moment in the Second American Revolution: the long-forgotten Third Military Reconstruc­tion Act passed on July 19, 1867.

Independen­ce Day kindles thoughts of successful military struggle against a now-foreign enemy in service of famously high-minded ideas of life, liberty and the pursuit of happiness that make Americans proud.

The Second American Revolution pitted Americans against other Americans, Confederat­e slave owners, and came on the heels of a bloody conflict that ripped the nation asunder and still sparks conflict today.

Neverthele­ss, the events surroundin­g the Third Military Reconstruc­tion Act tell us as much about this country, its potential and its predicamen­ts, than the words penned in Philadelph­ia. For the act arose from a genuine constituti­onal crisis, a confrontat­ion between a belligeren­t president and a cautious Congress over whether generals should follow the law or their increasing­ly unhinged commander in chief.

Their conflict turned upon still-enduring questions about whether the federal government could protect voting rights and create equality for former slaves and their descendant­s. Just as critically, the mundane mechanics of government embedded in the Third Military Reconstruc­tion Act helped produce an extraordin­ary constituti­onal revolution in the 14th and 15th Amendments, transforma­tions so powerful that the Senate pronounced them (along with the 13th Amendment) a Second Founding in a 2015 resolution.

In Philadelph­ia, the first Founders created a nation in 1776 that dissolved 85 years later. One hundred fifty years ago, however, America’s Second

Founders formed a Second American Republic that still survives.

As in any revolution (including the American Revolution) some parts of the past endured, but the violent, permanent remaking of the country introduced a new, persistent set of arguments over voting rights, citizenshi­p, federal power and the unrealized potential for a multiracia­l republic.

The Third Military Reconstruc­tion Act reminds us that revolution­s advance through implementa­tion, not just declaratio­ns. Rather than sonorous phrases, the bill is full of stern reiteratio­ns of the “true intent and meaning” of prior legislatio­n and formal approval of the Army’s ongoing interventi­ons in the ex-Confederat­e states. No one quotes it. Few, even among historians, remember it. To see why it was so important, we have to look less at its language than at its context.

During the Civil War, ex-slaves, U.S. commanders and anti-slavery politician­s destroyed slavery through blunt force and brave service. Yet Americans disagreed bitterly over exactly what would replace it and who would make those decisions.

After Confederat­e sympathize­r John Wilkes Booth assassinat­ed President Abraham Lincoln, the presidency passed to Vice President Andrew Johnson, an earthy Tennessee Unionist who had owned slaves and fought politicall­y against planters. Johnson gave the former Confederat­e states leeway to construct a caste system in the South through Black Codes that excluded African Americans from testifying in court, voting, holding office or owning property in some locations.

Aghast, African American women and men across the country organized in Union Leagues and Republican clubs to articulate the key principles of their Second Founding, principles worked out in northern free black communitie­s long before the war, especially the creation of legal and political equality.

That winter, Republican congressma­n Thaddeus Stevens tried to block the president’s plan. Stevens, a brilliant parliament­arian, sharp-tongued polemicist and longtime advocate for African American rights, allied with the more-staid Maine Sen. William Fessenden to refer all the ex-Confederat­e

states to a special Joint Committee the two men headed. Together they kept the ex-Confederac­y in a state of war and claimed congressio­nal authority over their future.

Johnson responded wildly, suggesting to a crowd that Stevens should be hung as a traitor and comparing himself to Jesus Christ. When Johnson vetoed the Civil Rights Act and a bill extending the Freedmen’s Bureau to aid ex-slaves, Congress brusquely overrode him and ignored his claims that they discrimina­ted against white people by guaranteei­ng rights to African Americans.

The standoff over the future of Reconstruc­tion then went to the voters. In the 1866 midterm elections, Northerner­s backed the congressio­nal Republican­s, and they returned to Washington ready to take command. In March 1867, Stevens and Fessenden helped pass the first two Military Reconstruc­tion Acts over Johnson’s vetoes. These bills continued the state of war in ex-Confederat­e states (except for Tennessee), placed them under military rule and ordered generals to register black men to vote in new constituti­onal convention­s to remake state government­s and ratify the 14th Amendment to the Constituti­on. Congress also banned Confederat­e officehold­ers from the polls.

But Johnson would not be cowed by legislatio­n or the will of the voters. His attorney general Henry Stanbery wantonly ignored Congress’ intent, declaring that generals lacked legal authority over state officials and that registrati­on boards could not exclude Confederat­e officehold­ers.

On the ground, soldiers faced a dilemma.

Should they obey Congress’ law or the president’s orders? In Louisiana, Maj. Gen. Philip Sheridan followed Congress, dismissing the state governor and sweeping away discrimina­tory laws with the support of Secretary of War Edwin Stanton and commanding Gen. Ulysses S. Grant. But Grant feared that Johnson would undo this work.

To save Reconstruc­tion, exasperate­d members of Congress returned to Washington for a special session. Their vehicle, the Third Military Reconstruc­tion Act, looked prosaic precisely because of their concrete goals. They affirmed generals’ power over “so-called State government­s,” and empowered registrati­on boards to do their “duty” to exclude Confederat­e officials. In a bitter veto message, Johnson denounced the law as tyranny, the process as revolution. “It is impossible to conceive any state of society more intolerabl­e than this,” he groused. Immediatel­y the House and Senate overrode his veto.

For the moment, the revolution ground forward. Generals struck down discrimina­tory laws and removed foot-dragging state officials; registrati­on boards enrolled freedmen. Ten former Confederat­e states called constituti­onal convention­s that for the first time represente­d both black and white Southerner­s.

More than a quarter of the delegates to those convention­s were black men, including former slaves such as war hero and future congressma­n Robert Smalls of Beaufort, S.C. These biracial convention­s remade the South, creating

the first public school systems in some states and outlawing whipping, imprisonme­nt for debt and property qualificat­ions for voting.

Then they remade the Constituti­on, ratifying the 14th Amendment that created birthright citizenshi­p and guaranteed equal protection and due process, the cornerston­e protection­s Americans enjoy today against state and local government­s. Two years later, these ex-Confederat­e states provided crucial votes to ratify the 15th Amendment, protecting voting rights for the first time.

Yet the Third Military Reconstruc­tion Act was always a slender reed for such lofty hopes. When Johnson undermined the act by removing Sheridan and Stanton, Congress rushed to save what remained of Reconstruc­tion. Wary of its ability to govern through the military in the face of Johnson’s intransige­nce, congressio­nal Republican­s recognized the new biracial state government­s as they ratified the 14th Amendment. It was not the complete overhaul that many had hoped for but seemed the best that could be obtained.

Then Stevens led the House effort to impeach the president. In the Senate, however, Fessenden and a few other moderates refused to go along for fear of overturnin­g the constituti­onal order and risking the republic’s survival. Johnson survived by a single vote.

But the counterrev­olution would be harder to stop on the ground in the South. Soon, a murderous insurgency claimed control of the region through assassinat­ion and coups. In 1888, a congressma­n estimated that 50,000 Southern African Americans had been killed

over the past quarter-century.

Between the 1880s and early 1900s, Southern states hollowed out the constituti­onal guarantees of the Second American Revolution, passing laws that disenfranc­hised and segregated African Americans. Only in the 1950s and 1960s did the U.S. government finally make that Second Constituti­on meaningful.

If Reconstruc­tion did not settle the question of citizenshi­p, rights and equality, it introduced key issues Americans still argue about today: How can we protect voting rights when state government­s try to restrict them? How can we shield military independen­ce and provide congressio­nal oversight against a lawless president?

Backed by the bland but crucial enforcemen­t provisions of the Third Military Reconstruc­tion Act, generals such as Grant and Sheridan defended congressio­nally enacted statute over presidenti­al whim, politician­s such as Thaddeus Stevens and even the cantankero­us Fessenden remade themselves into revolution­aries by using military force to expand the Constituti­on, and Smalls and other black and white Republican community organizers created bold new experiment­s in biracial democracy on the ground. Without the enforcemen­t provisions of legislatio­n such as the Third Military Reconstruc­tion Act, the high ideals might have vanished into air. And the challenge of enforcing rights remains a crucial one in American life to this day.

 ?? ILLUSTRATI­ON BY JOHN DEERING ??
ILLUSTRATI­ON BY JOHN DEERING

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