For­got­ten war

Northwest Arkansas Democrat-Gazette - - PERSPECTIVE - IL­LUS­TRA­TION BY JOHN DEER­ING

NGREGORY P. DOWNS THE WASH­ING­TON POST ot 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.

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