by H. W. Brands
Stevens’s insistence on black equality, shared by other Radical Republicans, inspired Congress in March 1866 to pass a civil rights bill nullifying the Southern black codes, guaranteeing citizenship to the freedmen and promising equality before the law. Johnson vetoed the bill. “In all our history, in all our experience as a people living under Federal and State law, no such system as that contemplated by the details of this bill has ever before been proposed or adopted,” the president declared. “They establish for the security of the colored race safeguards which go infinitely beyond any that the General Government has ever provided for the white race. In fact, the distinction of race and color is by the bill made to operate in favor of the colored and against the white race.” But moderate Republicans joined the Radicals to override the veto, and the civil rights bill became law.
Yet the Radicals weren’t satisfied. Stevens, Sumner and the others understood that what Congress establishes by statute the Supreme Court can disestablish by decision. The Taney court had ruled in the Dred Scott case that blacks could not be citizens, and though Taney was dead his successors on the court might follow his lead and find or conjure cause for disallowing the new civil rights act. To forestall such an outcome the Republicans proposed to write the essence of the civil rights act, the guarantee of citizenship, into the Constitution. They had revised the Constitution once already; the Thirteenth Amendment, disallowing slavery, had passed Congress in January 1865, been ratified by most of the Northern states in short order and won the approval of the Southern states as a de facto condition of their readmission under the Johnson reconstruction plan.
The Fourteenth Amendment was trickier. Johnson had endorsed the end of slavery—not that he had had much choice—but he remained stubbornly opposed to the idea of black citizenship. “This is a country for white men,” he declared, “and, by God, as long as I am President, it shall be a government for white men.” Nor was he alone in questioning a civil rights amendment. Several Northern states barred blacks from political participation and had no desire for a civil rights amendment to apply to them. Yet the status quo appeared intolerable to most Northerners. Justice to African Americans apart, the end of slavery was about to produce a side effect not many Northerners—or Southerners—had previously thought through. Abolition rendered inoperative the clause of the Constitution counting but three-fifths of slaves toward Southern representation in Congress; the black populations of the South would now be counted in full. In other words, the South, far from being punished for its crimes against the Union, would be rewarded with extra seats in the House and with the extra electoral votes for president those seats would convey. It wasn’t beyond imagination that a Southerner would become president at the next election.
What to do? The Republicans couldn’t fiddle the numbers back down without denying their commitment to equality and the fundamental principles of democracy. Yet they could insist that Southern blacks be given full rights of citizenship, including the vote, so that they might have a voice in filling those extra Southern seats. But a direct guarantee of black suffrage wouldn’t sit well with the Northern states that still wanted to discriminate at the polls. The simplest solution was to count qualified voters rather than mere inhabitants in determining representation. If Southern states didn’t let blacks vote, those states would gain no congressional seats. Northern states that disallowed black voting would theoretically suffer, too, but because the numbers of Northern blacks were small, in practice no Northern state was likely to lose a seat in Congress.
The Republican drafters of the civil rights amendment began by declaring that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This sentence would guarantee citizenship to African Americans (while bypassing Indians, who were not subject to federal jurisdiction). The proposed amendment went on to require that all persons in every state be accorded “the equal protection of the laws.” It forbade the states to “abridge the privileges or immunities of citizens of the United States.” And it guaranteed “due process of law” to all.
The “equal protection” and “due process” clauses would keep constitutional lawyers busy for the next century and a half, but the true art began in the second section of the amendment. It confirmed the end of the three-fifths rule but went on to say that when a state denied the vote to any group of adult males (excluding those barred from voting by crime or participation in the late rebellion), that state’s representation in Congress would be trimmed by a proportional amount. Put otherwise, if Southern states denied the vote to blacks, they would be worse off than before (by roughly the three-fifths the slaves had counted). Of course, the same rule applied to Northern states that didn’t allow blacks to vote, but it would have much less effect there.
As with most important works of art, what became the Fourteenth Amendment evoked strong emotions, often negative. Hardcore egalitarians complained that suffrage should have been addressed directly and that the proposed amendment left too much to chance and to the evil genius of Southern whites. Erstwhile abolitionist Wendell Phillips, still president of the Anti-Slavery Society, condemned it as a “fatal and total surrender” to the South. George W. Julian, a Radical congressman from Indiana, called it a “wanton betrayal of justice and humanity.” But Thaddeus Stevens, though privately declaring the amendment a “shilly-shally bungling thing,” publicly explained that nothing better could be accomplished under present circumstances. “In my youth, in my manhood, in my old age,” he told the House, “I had fondly dreamed that when any fortunate chance should have broken up for a while the foundation of our institutions, and released us from obligations the most tyrannical that ever man imposed in the name of freedom, that the intelligent, pure and just men of this Republic, true to their professions and their consciences, would have so remodeled all our institutions as to have freed them from every vestige of human oppression, of inequality of rights, of the recognized degradation of the poor, and the superior caste of the rich. In short, that no distinction would be tolerated in this purified Republic but what arose from merit and conduct.” This dream, however, had vanished in the crucible of the war and its turbulent aftermath. “I find that we shall be obliged to be content with patching up the worst portions of the ancient edifice, and leaving it, in many of its parts, to be swept through by the tempests, the frosts, and the storms of despotism.” Stevens had reconciled himself to what was possible. “Do you inquire why, holding these views and possessing some will of my own, I accept so imperfect a proposition? I answer, because I live among men and not among angels.”
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THE REPUBLICAN LEADERSHIP DROVE THE AMENDMENT THROUGH Congress and prepared to fight the elections of 1866 under its banner. Johnson prepared to fight back, and he enlisted Grant into service with him. Even Johnson’s enemies acknowledged the president’s skills as a stump speaker, and he intended to put his rhetorical talents to use on a several-state “swing around the circle.” He talked Grant into going by explaining that they would dedicate a memorial to Stephen Douglas in Chicago; the country would benefit from this display of bipartisan solidarity.
The crowds were tepid in the North but grew warmer as the president’s group reached the border states. The turnout in St. Louis was large and enthusiastic. Johnson interpreted the positive reception as an endorsement of his reconstruction policies. “I look upon it as an indication of the popular heart moved with reference to questions now agitating the public mind,” he told an afternoon rally. The audience applauded more loudly. “Believing this, I come before you with the country’s flag bearing thirty-six stars, with the Constitution in one hand and the Union in the other.” Johnson’s reference was to his belief that all thirty-six states, North and South, were fully part of the Union, against the Radical Republican view that the eleven rebel states remained outside. “The time has come when the great masses of the people of the United States should look to a cons
titutional government, and an emerging from the chaotic conditions in which they were plunged, and resuming our former relations. It behooves every man who loves the law and the Constitution to see that the questions involved are properly adjusted. In leaving the stand I leave with you the Constitution your fathers purchased with their blood.” More applause and rousing cheers. “I turn over to you the flag of the country, not with twenty-five but with thirty-six stars. I turn over to you the Union. It will be protected and cherished in your hands, and, so far as I am concerned, being the humble medium in the Executive Department—God being willing—they shall be protected and defended at all hazards.” Louder cheers than ever.
The applause moved Johnson to greater flights that evening. He blamed violence in the South on the Radicals, who encouraged agitation against the existing Southern governments, he said. “Every drop of blood that was shed rests upon their shirts.” He lampooned the Radicals who called him a Judas for betraying what they asserted was the cause of the Union. “If I have played the Judas, who has been my Christ that I have played the Judas with? Was it Thad Stevens? Was it Wendell Phillips? Was it Charles Sumner?” At each name the audience hissed and shouted. “Are these the men that set themselves up and compare themselves with the Savior of man, and everybody that differs with them in opinion, and that try to stay and arrest their diabolical and nefarious policy, to be denounced as a Judas?” Cheers and a loud “Hurrah for Andy!” from the audience. Johnson derided the motives of his opponents in Congress and their allies in the executive branch, whom he was trying to remove from office. “Don’t you see, my countrymen, it is a question of power, and being in power.… Their object is to perpetuate themselves in power.… When you make an effort or struggle to take the nipple out of their mouths, how they clamor! They have stayed at home here five or six years, held the offices, grown fat, and enjoyed all the emoluments of position.” He called on his listeners to rally to his side. “If you will stand by me in trying to give the people a fair chance, to have soldiers and citizens to participate in these offices, God being willing I will kick them out. I will kick them out just as fast as I can.” More cheers, and shouts of “Kick ’em out!”
Grant listened and groaned. “I am getting very tired of this expedition and of hearing political speeches,” he wrote Julia from Auburn, New York, when the tour had hardly begun. “I must go through, however.” As Johnson’s attacks on the Radicals grew more heated, Grant’s tolerance diminished further. “I never have been so tired of anything before as I have been with the political stump speeches of Mr. Johnson from Washington to this place,” he told Julia from St. Louis. “I look upon them as a national disgrace.” He quickly added: “Of course you will not show this letter to anyone, for so long as Mr. Johnson is President I must respect him as such, and it is the country’s interest that I should also have his confidence.”
It complicated Grant’s position that many Republicans made no secret of their preference for him. He arrived at Cincinnati ahead of Johnson and sought refuge from politics by attending the theater. But a boisterous group of Union veterans cornered him there, shouting for him to come out and address them. Grant told them to send in their commander. When the officer arrived, Grant lectured sternly: “I am no politician. The president of the United States is my commander-in-chief. I consider this demonstration in opposition to the president of the United States, Andrew Johnson. If you have any regard for me you will take your men away.” A local newspaper chuckled at the denouement: “A large crowd, bent upon seeing the Union hero, joined in the clamor, but neither the seductive strains of the band nor the enthusiastic calls of the people would induce the shy little man to appear. He had in fact smelt a rat, and doubtless in consideration of the fact that the Presidential party will be here tomorrow, of which he is at this time one, he vamoosed.” The crowd eventually realized that Grant had given them the slip, but they refused to be disheartened. “The boys abandoned the field with three mighty cheers for ‘General Grant, the next President of the United States!’ ” the paper related.
Grant’s unease grew into alarm as he considered the effects of Johnson’s campaign upon Southerners. “I regret to say that since the unfortunate differences between the President and Congress, the former becomes more violent with the opposition he meets with until now but few people who were loyal to the Government during the rebellion seem to have any influence with him,” he wrote Phil Sheridan in Texas. “None have unless they join in a crusade against Congress and declare their acts, the principal ones, illegal, and indeed I much fear that we are fast approaching the point where he will want to declare the body itself illegal, unconstitutional and revolutionary.” Grant was writing Sheridan to say that the army must be on the alert. “Commanders in Southern states will have to take great care to see, if a crisis does come, that no armed headway can be made against the Union.” Grant ordered that army weapons stored in Southern states be removed to the North, lest local militias try to seize them, and he directed Sheridan to tell the Texas governor to leave the Texas militia in their homes. The governor was citing Indian troubles as reason for summoning the citizen soldiers; Grant told Sheridan to inform the governor that the army would handle the Indians. “Texas should have no reasonable excuse for calling out the militia.”
Grant’s fear of Southern violence increased as the elections neared. Parts of the South had been restive for months. A riot in Memphis started after white police arrested a black man whose carriage had collided with that of a white man and some black Union veterans protested. The riot didn’t end until three days had passed, nearly fifty people had been killed (all but two of them black), many more had been injured and hundreds of homes and shops had been reduced to smoldering rubble. The violent spirit spread to New Orleans, where hundreds of blacks peacefully petitioning for the vote became the victims of what Sheridan called an “absolute massacre” when angry whites, including police, assaulted the petitioners. Before Sheridan’s troops were able to stop the rampage, at least thirty-four blacks (and three white sympathizers) were killed and more than a hundred persons were wounded. An eyewitness told of seeing wagons hauling away the dead and wounded, with the bodies “thrown in like sacks of corn.” Contemporary accounts and subsequent investigation indicated premeditation in the attack. “We are going to shoot down all these God damned niggers,” one policeman was quoted as having said.
Despite his concern at the bloodletting, Grant was reluctant to engage the army in domestic affairs unless absolutely necessary. Andrew Johnson received word from the governor of Maryland that riots could disrupt the elections in Baltimore; the president asked Grant to investigate and prepare to send in the troops. Grant inquired and concluded that though the politicking was intense, interposing the army would make things worse. “So far there seems to be merely a very bitter contest for political ascendancy in the state,” he reported to Johnson. “Military interference would be interpreted as giving aid to one of the factions no matter how pure the intentions or how guarded and just the instructions. It is a contingency I hope never to see arise in this country whilst I occupy the position of General-in-Chief of the Army to have to send troops into a state in full relations with the General Government, on the eve of an election, to preserve the peace. If insurrection does come, the law provides the method of calling out forces to suppress it. No such condition seems to exist now.”
Johnson’s sources told a different story. “There is ground to apprehend danger of an insurrection in the City of Baltimore, on or about the day of the election,” the attorney general, Henry Stanbery, wrote Grant, speaking for himself and the president. “I feel great solicitude that preparations be made to meet and promptly put down such insurrection if it should break out.”
Grant went to Baltimore personally. He discovered greater cause for concern than previously. Cyrus Comstock, a staff officer traveling with him, wrote to George Meade: “General Grant desires me to say that there is in Baltimore very high political feeling which may p
ossibly result in collision and bloodshed. It is reported that ex-soldiers called ‘Boys in Blue’ exist there, and threats have been made that similar organizations from Pennsylvania would pour into Baltimore if there should be in that city a serious collision between the two political parties. Such an invasion would inevitably cause serious bloodshed and might lead to the most deplorable circumstances.” Grant quietly summoned troops from New York to bolster those at Baltimore’s Fort McHenry.
In public, though, he downplayed the prospect of violence. Reporters followed him as he met with public officials and other interested parties, calming tempers and allaying concerns. “General Grant is of the opinion that there will be no disturbance of a serious character in Baltimore,” a correspondent with whom he had spoken informed the readers of the New York Times.
Whether from Grant’s reinforcement of the garrison, from his soothing presence or from some other cause, the turmoil in Baltimore didn’t erupt into violence. The outcome of the elections nationwide was a disaster for Johnson nonetheless. The Republicans won huge majorities in both the House and Senate, claiming advantages of nearly three to one in the lower chamber and four to one in the upper.
The Republicans didn’t wait for the new Congress to be sworn in to capitalize on their triumph. On the first day of the post-election session, in December 1866, they struck against the president. They introduced a measure that would dissolve the Johnsonian Southern state governments (except in Tennessee, where a rabidly anti-Johnson governor had rammed ratification of the Fourteenth Amendment through the legislature. “Give my respects to the dead dog of the White House,” he declared). In place of the state governments the Republican bill would reestablish military rule, returning the South to the status of an occupied territory. Some moderate Republicans initially balked at the measure as overly drastic, but continuing violence in the South led to its passage in March 1867, over Johnson’s veto. The Reconstruction Act divided the South into five military districts, each under the command of an army general authorized to employ military force to ensure stability and order. It directed the occupied states to write new constitutions guaranteeing the vote to all adult males, black as well as white. And it effectively withheld congressional recognition of the new state governments until those states had ratified the Fourteenth Amendment.