by Jill Lepore
The death of Abraham Lincoln marked the birth of a new American creed: a religion of emancipation. It began with the mourning of a martyr. After four years of war, most Americans had black clothes ready to hand, the women their widow’s weeds, the men their black cloaks and armbands. At the White House, the doctors who conducted the autopsy kept relics, one wrapping in paper “a splinter of bone from the skull.” Lincoln had been a man of gigantic proportions, his body the subject of ceaseless fascination. The embalmers, arriving at the White House, promised, “The body of the President will never know decay.”90
Four days later, when the casket was put on display, vendors sold mementos as mourners gathered to get a glimpse of the dead president. “We have lost our Moses,” cried one elderly black woman waiting in line. “He was crucified for us,” another black mourner said in Pennsylvania. Not all Americans mourned. “Hurrah!” one South Carolinian wrote in her diary. “Old Abe Lincoln has been assassinated!”91
Mourners lined New York’s Union Square in 1865 as Lincoln’s funeral procession passed by while, perched on a rooftop, a photographer captured a bird’s-eye shot of the scene. Pallbearers carried Lincoln’s casket onto a funeral train that snaked across the country, through fields and towns, for twelve days and nights. On May 4, 1865, his body was carried into a temporary vault in Spring-field, Illinois, until a more permanent memorial could be built, a granite obelisk above a marble sarcophagus.92 If he had uttered no dying words, he had left many last words, forever remembered, and etched in stone.
With the nation still draped in black, the Thirteenth Amendment, Lincoln’s last legacy, went to the states. When it was finally ratified, on December 6, 1865, one California congressman declared, “The one question of the age is settled.”93 A great debate had ended. A terrible war had been won. Slavery was over. But the unfinished work of a great nation remained undone: the struggle for equality had only just begun.
Lincoln would remain a man trapped in time, in the click of a shutter and by the trigger of a gun. In mourning him, in sepia and yellow, in black and white, beneath plates of glinting glass, Americans deferred a different grief, a vaster and more dire reckoning with centuries of suffering and loss, not captured by any camera, not settled by any amendment, the injuries wrought on the bodies of millions of men, women, and children, stolen, shackled, hunted, whipped, branded, raped, starved, and buried in unmarked graves. No president consecrated their cemeteries or delivered their Gettysburg address; no committee of arrangements built monuments to their memory. With Lincoln’s death, it was as if millions of people had been crammed into his tomb, trapped in a vault that could not hold them.
The growing power of the federal government was extravagantly displayed at increasingly lavish presidential inaugurations.
Part Three
THE STATE
1866–1945
Decisions in a modern state tend to be made by the interaction, not of Congress and the executive, but of public opinion and the executive.
—Walter Lippmann,
“The Basic Problem of Democracy,”
1919
Nine
OF CITIZENS, PERSONS, AND PEOPLE
Residents of Richmond, Virginia, celebrated the anniversary of Emancipation Day in 1888, beneath a banner of Abraham Lincoln.
WHAT IS A CITIZEN? BEFORE THE CIVIL WAR, AND for rather a long time afterward, the government of the United States had no certain answer to that question. “I have often been pained by the fruitless search in our law books and the records of our courts for a clear and satisfactory definition of the phrase ‘citizen of the United States,’” Lincoln’s exasperated attorney general wrote in 1862.1 In 1866, Congress charged two legal scholars with discovering the definition. “The word citizen or citizens is found ten times at least in the Constitution of the United States,” one scholar wrote to the other, “and no definition of it is given anywhere.”2
Congress raised the question while deliberating over the consequences of emancipation: millions of people once held as slaves had been freed. What it would mean for them to become citizens would depend, in part, on the meaning of “citizen.” On this score, the Constitution proved maddeningly vague, referring to citizenship chiefly as a requirement for running for office, and in relation to the status of immigrants. Article II, Section 1, decreed, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” But even so seemingly straightforward a statement turned out to be murky. The words “natural born” were added only at the last minute, without recorded debate, after John Jay wrote a letter to George Washington suggesting that it might be “wise and seasonable to provide a strong check to the admission of foreigners into the administration of our national government and to declare expressly that the commander in chief of the American army shall not be given to, nor devolve on, any but a natural born citizen.”3 What and who is a “natural born citizen”? Jay didn’t say.
Under English common law, a “natural born subject” is a person born within the king’s realm or, depending on the circumstances, outside the king’s realm, but to the king’s subjects. A natural born citizen, though, isn’t quite the same thing as a natural born subject, not least because most U.S. laws did not discriminate between “natural born” and “naturalized” citizens, since Americans—immigrants and the children of immigrants—rejected the fealty of blood. In Federalist No. 52, Madison explained that anyone interested in running for Congress need only have been a U.S. citizen for seven years, because “the door of this part of the federal government is open to merit of every description, whether native or adoptive, whether young or old, and without regard to poverty or wealth, or to any particular profession of religious faith.”4 People running for Congress didn’t have to meet property requirements; they didn’t have to have been born in the United States; and they couldn’t be subjected to religious tests. This same logic applied to citizenship, and for the same reason: the framers of the Constitution understood these sorts of requirements as forms of political oppression. The door to the United States was meant to be open.
Before the 1880s, no federal law restricted immigration. And, despite periods of fervent nativism, especially in the 1840s, the United States welcomed immigrants into citizenship, and valued them. After the Civil War, the U.S. Treasury estimated the worth of each immigrant as equal to an $800 contribution to the nation’s economy, eliciting a protest from Levi Morton, a congressman from New York, that this amount was far too low. On the floor of the House, Morton asked, “what estimate can we place upon the value to the country of the millions of Irishmen and Germans to whom we largely owe the existence of the great arteries of commerce extending from the Atlantic to the Pacific, and the results of that industry and skill which have so largely contributed to the wealth and property of the country?”5
Plainly, whatever else could be said of American citizenship, the idea was both liberal and capacious. Article IV, Section 2, of the Constitution established that “citizens of each state shall be entitled to all privileges and immunities of citizens in the several states,” a stipulation that Alexander Hamilton believed to be “the basis of the Union.”6 A citizen of one state was the equal of a citizen from another state. But what made these people citizens? Under what conditions were residents not citizens? And what, exactly, were the privileges and immunities of citizenship?
Nineteenth-century politicians and political theorists interpreted American citizenship within the context of an emerging set of ideas about human rights and the authority of the state, holding dear the conviction that a good government guarantees everyone eligible for citizenship the same set of political rights, equal and irrevocable. Massachusetts senator Charles Sumner stated this view squarely in 1849, while discussing the constitution of his home state: “Here is the Great Charter of every human being drawing vital breath upon this soil, whatever may be his condition, and whoever may be his pa
rents. He may be poor, weak, humble, or black,—he may be of Caucasian, Jewish, Indian, or Ethiopian race,—he may be of French, German, English, or Irish extraction; but before the Constitution of Massachusetts all these distinctions disappear. . . . He is a MAN, the equal of all his fellow-men. He is one of the children of the State, which, like an impartial parent, regards all its offspring with an equal care.”7
The practice fell short of the ideal. On the one hand, all citizens, whether natural born or naturalized, were eligible to run for Congress, no federal laws restricted immigration, and all citizens were, at least theoretically, political equals, but on the other hand, no small number of laws and customs restricted citizenship. The Naturalization Act passed in 1798 extended the residency period required for an immigrant to become a citizen from five to fourteen years. That period was set back to five years in 1802, but under the terms of a law that declared that only a “free white person” could become a citizen. In 1857, in Dred Scott, the Supreme Court considered the question of black citizenship, asking, “Can a negro whose ancestors were imported into this country and sold as slaves become a member of the political community formed and brought into existence by the Constitution of the United States, and as such become entitled to all the rights, and privileges, and immunities, guaranteed by that instrument to the citizen?” Its resounding answer was no. And the citizenship of women was of such a limited scope that in 1859, Elizabeth Cady Stanton wrote bitterly to Susan B. Anthony: “When I pass the gate of the celestials and good Peter asks me where I wish to sit, I will say, ‘Anywhere so that I am neither a negro nor a woman. Confer on me, great angel, the glory of White manhood, so that henceforth I may feel unlimited freedom.’”8
Adding to the confusion, restrictions on citizenship were unevenly enforced, as is made clear in the evidence of passport applications. The United States issued its first passport in 1782, but for a long time passports were issued not only by the federal government but also, and more usually, by states and cities, by governors, by mayors, and even by neighborhood notary publics. Moreover, not all citizenship documents took the form of passports. Black sailors were commonly issued something known as a “seaman’s protection certificate,” declaring that the bearer was a “Citizen of the United States of America”; Frederick Douglass used one of these certificates to make his escape from slavery.9 (There existed, too, in the land of slavery, a proof of identity that served more like a certificate of noncitizenship, an antipassport, a “slave pass”: a paper signed by a slave owner, needed by any enslaved person moving through land controlled by slave patrols, armed bands of white men formed into militias.) A black man, identified as a “free person of color”—a term adapted from the French gens de couleur libres, and regularly used in the United States beginning in 1810—first obtained a passport in 1835, but that same year the Supreme Court considered the question of whether a passport is also a proof of citizenship and decided that it was not.10
This hodgepodge only gradually yielded to a more uniform system. In 1856, Congress passed a law declaring that only the secretary of state “may grant and issue passports,” and that only citizens could obtain them. In August of 1861, Lincoln’s secretary of state, William Seward, issued this order: “Until further notice, no person will be allowed to go abroad from a port of the United States without a passport either from this Department or countersigned by the Secretary of State.” From then until the end of the war, this restriction was enforced; its aim was to prevent men from leaving the country in order to avoid military service. In 1866, a State Department clerk wrote that, in the issuing of passports, “there is no distinction made in regard to color,” a policy well ahead of federal citizenship law, but it was just this sort of thing that led Congress to send those two legal scholars into the law books, looking, in vain, for a definition of the word “citizen.”11
The Civil War raised fundamental questions not only about the relationship between the states and the federal government but also about citizenship itself and about the very notion of a nation-state. What is a citizen? What powers can a state exert over its citizens? Is suffrage a right of citizenship, or a special right, available only to certain citizens? Are women citizens? And if women are citizens, why aren’t they voters? What about Chinese immigrants, pouring into the West? They were free. Were they, under American law, “free white persons” or “free persons of color” or some other sort of persons?
In the decades following the war, these questions would be addressed by a new party system and a new political order, while a newly empowered and authorized federal government supported the growth of industrial capitalism, which in turn produced inequalities of income and wealth that shook the foundation of the Republic. In that new political order, corporations would claim to be, in the eyes of the law, “persons,” and the dispossessed, the farmers and factory workers who were left behind, would found a political party that insisted on their preeminent authority as “the people.”
In 1866, Congress searched in vain for a well-documented definition of the word “citizen.” Over the next thirty years, that definition would become clear, and it would narrow. In 1896, the U.S. passport office, in the Department of State, which had grown to thousands of clerks, began processing applications according to new “Rules Governing the Application of Passports,” which required evidence of identity, including a close physical description
Lew Wa Ho worked at a dry goods shop in St. Louis; the photograph was included in his Immigration Service case file as evidence of employment. Age, _____ years; stature, _____ feet _____ inches (English measure); forehead, _____; eyes, _____; nose, _____; mouth, _____; chin, _____; hair, _____; complexion, _____; face, _____
as well as affidavits, signatures, witnesses, an oath of loyalty, and, by way of an application fee, one dollar.12
In the unruly aftermath of the Civil War, the citizen was defined, described, measured, and documented. And the modern administrative state was born.
I.
THE UNION’S DEFEAT of the Confederacy granted to the federal government unprecedented powers. The government exerted over the former soldiers of the Confederacy the powers of a victor over the vanquished. Over former slaves, it exerted powers designed to guarantee civil rights, in an attempt to thwart the efforts of Southern states, which were determined to deny those rights to freedmen and women.
Long before the war ended, black men and women tried to anticipate and influence the government’s postwar plans. Their priorities were clear: citizenship and property. In March 1863, Edwin Stanton, Lincoln’s secretary of war, established the American Freedmen’s Inquiry Commission. Its investigators reported that “the chief object of ambition among the refugees is to own property, especially to possess land, if it only be a few acres.” In October 1864, in Syracuse, New York, the National Convention of Colored Men called for “full measure of citizenship” for black men—not women—and for legislative reforms that included allowing “colored men from all sections of the country” to settle on lands granted to citizens by the federal government through the Homestead Act. The Homestead Act, signed into law in 1862, had made available up to 160 acres of “unappropriated public lands” to individuals or heads of families who would farm them for five years and then pay a small fee. Thaddeus Stevens, a craggy-faced Pennsylvanian, led the self-styled Radical Republicans, that wing of the party staunchly committed to reconstructing the political order of Southern society. Stevens, who had been chairman of the House Ways and Means Committee under Lincoln, wanted to confiscate and distribute nearly four hundred million acres of Confederate land from some seventy thousand of the Confederacy’s “chief rebels,” and distribute forty acres to every adult freedman. The Bureau of Refugees, Freedmen, and Abandoned Lands (more generally known as the Freedmen’s Bureau) supplied food and clothing to war refugees and to aid the settlement of freed people but, at freedmen’s conventions, rumors spread that the bureau intended to give each freedman forty acres and a mule. “I picked out my mule,�
� Sam McAllum, a Mississippi ex-slave later told an interviewer. “All of us did.”13
As the war neared its close, Congress debated how to govern the peace. What should happen to the leaders of the Confederacy? Would they still have the rights of citizens? What should happen to their property? Thaddeus Stevens insisted that the federal government had to treat the former Confederacy as “a conquered people” and reform “the foundation of their institutions, both political, municipal and social,” or else “all our blood and treasure have been spent in vain.”14
But Lincoln was opposed to a vindictive peace, fearing that it would prevent the nation from binding its wounds. He proposed, instead, the so-called 10 percent plan, which included pardoning Confederate leaders and allowing a state to reenter the Union when 10 percent of its voters had taken an oath of allegiance. Radical Republicans in Congress rejected that plan and, at the end of 1864, passed the Wade-Davis Bill, which required a majority of voters to swear that they had never supported the Confederacy, and which would have meant the complete disenfranchisement of all former Confederate leaders and soldiers. Lincoln vetoed the bill. He did, however, eventually agree to place the South under military rule.
After Lincoln was assassinated and his vice president, Andrew John-son, assumed the presidency, Johnson, a square-built former governor of Tennessee, attempted to turn the tide of the postwar plan, plotting a course markedly different from Lincoln’s. Lincoln had chosen Johnson as his running mate in an effort to offer reassurance to border states. With Lincoln’s death, Johnson set for himself the task of protecting the South. He talked not about “reconstruction” but about “restoration”: he wanted to bring the Confederate states back into the Union as fast as possible, and to leave matters of citizenship and civil rights to the states to decide.