These Truths
Page 38
Freedmen continued to press their claims: Union Leagues, Republican clubs, and Equal Rights Leagues held “freedmen’s conventions,” demanding full citizenship, equal rights, suffrage, and land, and complaining about the amnesties and pardons issued by Johnson to former Confederate leaders. “Four-fifths of our enemies are paroled or amnestied, and the other fifth are being pardoned,” declared one assembly of blacks in Virginia, charging Johnson with having “left us entirely at the mercy of these subjugated but unconverted rebels in everything save the privilege of bringing us, our wives and little ones, to the auction block.”15 By the winter of 1865–66, Southern legislatures consisting of former secessionists had begun passing “black codes,” new, racially based laws that effectively continued slavery by way of indentures, sharecropping, and other forms of service. In South Carolina, children whose parents were charged with failing to teach them “habits of industry and honesty” were taken from their families and placed with white families as apprentices in positions of unpaid labor.16 Slavery seemed like a monster that, each time it was decapitated, grew a new head.
And then rose the Ku Klux Klan, founded in Tennessee in 1866, a fraternal organization of Confederate veterans who dressed in white robes, in order to appear, according to one original Klansman, as “the ghosts of the Confederate dead, who had arisen from their graves in order to wreak vengeance.” The Klan really was a resurrection—not of the Confederate dead but of the armed militias that had long served as slave patrols that for decades had terrorized men, women, and children with fires, ropes, and guns, instruments of intimidation, torture, and murder.17
A pamphlet published in 1916 celebrated “the noble ride of the Ku Klux Klan of the Reconstruction Period” and insisted on its “rightful place in history as the saviour of the South, and, thereby, the saviour of the nation.” On February 2, 1866, the Senate passed the Civil Rights Act, the first federal law to define citizenship. “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States,” it began. It declared that all citizens have a right to equal protection under the law; its provisions included extending the Freedmen’s Bureau. Five days after the Senate vote—a crucial, pivotal moment—Frederick Douglass visited the White House to seek the president’s support during an extraordinarily tense meeting, a confrontation as remarkable and historic as any that has happened in those halls.
“You are placed in a position where you have the power to save or destroy us,” Douglass told the president. “I mean our whole race.”
Johnson, in a rambling, evasive, and self-justifying speech, assured Douglass that he was a friend to black people. “I have owned slaves and bought slaves,” he said, “but I never sold one.” In truth, Johnson had no intention of taking a stand against black codes or debating equal rights or signing a Civil Rights Act. After Douglass left, Johnson scoffed to an aide, “He’s just like any nigger, and he would sooner cut a white man’s throat than not.”18
In March, after the House passed the Civil Rights Act, Johnson vetoed it. In April, Congress, wielding its power, overrode Johnson’s veto. A landmark in the history of the struggle for power between the executive and legislative branches of the federal government, Congress’s stand marked the first time that it had ever overridden a presidential veto.
As the federal government acted to define citizenship and protect civil rights, Johnson tried to halt these changes but proved unable to triumph over the Radical Republicans who dominated Congress and stood at the center of national power.19 As Radical Republicans turned to the question of voting, they began work on constitutional amendments designed to prevent the disenfranchisement of freedmen: the Fourteenth and Fifteenth Amendments. There were ideals at stake, of course: making good on the promise of the nation’s founding documents and the cause for which the war was fought. But there was also the matter of raw politics. The abolition of slavery rendered the three-fifths clause obsolete. With each black man, woman, and child counting not as three-fifths of a person but as five-fifths, Southern states gained seats in Congress. Black men, if they were able to vote, were almost guaranteed to vote Republican. For Republicans in Congress to maintain their hold on power, then, they needed to be sure the Southern states didn’t stop black men from voting.
In pursuing this end, Radical Republicans were supported by the legions of women who had fought for abolition and emancipation and for women’s rights. After Lincoln signed the Emancipation Proclamation, and after ratification of the Thirteenth Amendment, Elizabeth Cady Stanton and Susan B. Anthony had begun to fight, equally hard, for the next amendment, which they expected to guarantee the rights and privileges of citizenship for all Americans—including women.
The Fourteenth Amendment, drafted by the Joint Committee on Reconstruction, marked the signal constitutional achievement of a century of debate and war, of suffering and struggle. It proposed a definition of citizenship guaranteeing its privileges and immunities, and insuring equal protection and due process to all citizens. “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,” it began. “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”20
During the drafting of the amendment, the committee betrayed the national phalanx of women who for decades had fought for abolition and for black civil rights by proposing to insert, into the amendment’s second section, a provision that any state that denied the right to vote “to any of the male inhabitants of such state” would lose representation in Congress. “Male” had never before appeared in any part of the Constitution. “If that word ‘male’ be inserted,” Stanton warned, “it will take us a century at least to get it out.”21 She was not far wrong.
Women protested. “Can any one tell us why the great advocates of Human Equality . . . forget that when they were a weak party and needed all the womanly strength of the nation to help them on, they always united the words ‘without regard to sex, race, or color’?” asked Ohio-born reformer Frances Gage. Charles Sumner offered this answer: “We know how the Negro will vote, but are not so sure of the women.” How women would vote was impossible to know. Would black women vote the way black men voted? Would white women vote like black women? Republicans decided they’d rather not find out. “This is the negro’s hour,” they told women. “May I ask just one question based on the apparent opposition in which you place the negro and the woman?” Stanton asked Wendell Phillips. “My question is this: Do you believe the African race is composed entirely of males?”22
Over the protests of women, the word “male” stayed in the draft. But another term raised more eyebrows. “All persons born or naturalized in the United States . . . are citizens.”23 Why “persons”? To men who were keen to deny women equal rights, “persons” seemed oddly expansive. Was there a way in which this amendment could be read, even with the word “male,” to support female claims for equal rights?
During the Senate debate, Jacob Howard, a Republican from Michigan, explained that the amendment “protects the black man in his fundamental rights as a citizen with the same shield which it throws over the white man.” Howard assured his fellow senators that the amendment most emphatically did not guarantee black men the right to vote (even though he wished that it did); it only suggested, without providing any mechanism for enforcement, that states that barred men from voting would lose representation in Congress. On this point, Howard quoted James Madison, who’d written that “those who are to be bound by laws, ought to have a voice in making them.” From the floor, Reverdy Johnson, a Democrat from Maryland, rose to ask how far such a proposition could logically be extended, especially given the amendment’s use of t
he word “person”:
MR. JOHNSON: Females as well as males?
MR. HOWARD: Mr. Madison does not say anything about females.
MR. JOHNSON: “Persons.”
MR. HOWARD: I believe Mr. Madison was old enough and wise enough to take it for granted that there was such a thing as the law of nature which has a certain influence even in political affairs, and that by that law women and children are not regarded as the equals of men.24
It would take a century for this matter to reach Congress again, and then only accidentally, during the debate over the 1964 Civil Rights Act. Yet even with the Fourteenth Amendment’s extension of certain protections only to “male inhabitants” and its narrowed understanding of the rights of persons, ratification was by no means assured. Andrew John-son opposed the amendment and urged Southern states not to ratify it. Only Tennessee ratified (always ambivalent about the Confederacy, and the last state to secede, Tennessee became the first readmitted to the Union). Meanwhile, in the fall of 1866, Radical Republicans were elected to Congress in huge numbers, cutting down Johnson at his knees. And yet, from his knees, still he swung at them. Republicans, deeming the expansion of federal power the only possible way to insure the civil rights of former slaves, passed four Reconstruction Acts. Johnson, swinging wildly, vetoed all four. Congress overrode each of his vetoes, crushing the president into the ground.
The Reconstruction Acts divided the former Confederacy into five military districts, each ruled by a military general. Each former rebel state was to draft a new constitution, which would then be sent to Congress for approval. In an act of constitutional coercion, Congress made readmission to the Union contingent on the ratification of the Fourteenth Amendment. Under the terms of Reconstruction, men who had been Confederate soldiers could not vote, but men who had been slaves could. In the former Confederacy, most white men who were able to vote were Democrats; 80 percent of eligible Republican voters were black men. Still, even with the protection of federal troops, black men were not always able to vote, especially as the Klan grew. Black men most often succeeded in casting ballots in the upper South. Ninety percent of black registered voters managed to vote in Virginia. In the deeper South, black men arrived early at the polls and in groups, often marching together, by prearrangement, to protect themselves against attack. One election supervisor from Alabama described the first day of voting in 1867: “there must have been present, near one thousand freedmen, many as far as thirty miles from their home, all eager to vote.”25
While the battle to ratify the Fourteenth Amendment raged on, black men participated in more than Election Day. Eight hundred black men served in state legislatures. They filled more than a thousand public offices, mostly in town and county government. A black man was, briefly, governor of Louisiana. “Now is the black man’s day—the whites have had their way long enough,” said one politician. A northern journalist visiting the South Carolina legislature wrote: “The body is almost literally a Black Parliament. . . . The Speaker is black, the Clerk is black, the door-keepers are black, the little pages are black, the chairman of the Ways and Means is black, and the chaplain is coal black.” Whites called it “Negro rule.”26
In Washington, Johnson struggled to regain his feet. Early in 1868, he tried to fire Secretary of War Edwin Stanton, a Radical Republican and Lincoln appointee. But Stanton, hardheaded and uncompromising, barricaded himself in his office for two months. The nation reeled from one constitutional crisis to the next. The House began impeachment proceedings against the president, charging him with violating a recently passed Tenure of Office Act. Congress voted to impeach, 126 to 47, but the Senate vote, 35–19, fell one vote shy of the two-thirds required. Johnson had survived, but impeachment, a constitutional gun that had never before been fired, had for the first time been loaded.27
The Fourteenth Amendment was finally ratified in the summer of 1868. That summer, Johnson failed to win the Democratic nomination for president, while Ohio-born Ulysses S. Grant, veteran of the War with Mexico and hero of the Civil War, won the Republican nomination, campaigning on the pledge “Let us have peace.” Black men who managed to vote despite the menace of the KKK nearly all voted for Grant.
Women tried to vote, too. Before the Fourteenth Amendment, women’s rights reformers had fought for women’s education and for laws granting to married women the right to control their own property; after the Fourteenth Amendment, the women’s rights movement became the women’s suffrage movement, which both narrowed and intensified it. In 1868, in a plan that was known as the New Departure, black and white women attempted to gain the right to vote by exercising it: they went to the polls and were arrested when they tried to cast ballots. During those same years, it became increasingly difficult for black men to vote, leading Congress to debate and propose yet another constitutional amendment, one that would raise still more questions about citizens, persons, and people, categories whose limits had long been tested by women and were being newly tested by immigrants from China.
CHINESE IMMIGRANTS BEGAN arriving in the United States in large numbers during the 1850s, following the gold rush. In 1849, California had 54 Chinese residents; by 1850, 791; by 1851, more than 7,000; by 1852, about 25,000. Most came from Kwangtung Province and sailed from Hong Kong, sent by Chinese trading firms known as “the Six Companies.” Most were men. Landing in San Francisco, they worked as miners, first in California and then in Oregon, Nevada, Washington, Idaho, Montana, and Colorado. In the federal census of 1860, 24,282 out of 34,935 Chinese toiled in mines. Although some Chinese immigrants left mining—and some were forced out—many continued to mine well into the 1880s, often working in sites abandoned by other miners. An 1867 government report noted that in Montana, “the diggings now fall into the hands of the Chinese, who patiently glean the fields abandoned by the whites.” Chinese workers began settling in Boise in 1865 and only five years later constituted a third of Idaho’s settlers and nearly 60 percent of its miners. In 1870, Chinese immigrants and their children made up nearly 9 percent of the population of California, and one-quarter of the state’s wage earners.28
In an 1886 cartoon, Uncle Sam kicks Chinese immigrants out of the United States, demonstrating the intensity of anti-Chinese feeling in the era of the Chinese Exclusion Act. Their rights, under state constitutions and statutes, were markedly limited. Oregon’s 1857 constitution barred “Chinamen” from owning real estate, while California barred Chinese immigrants from testifying in court, a provision upheld in an 1854 state supreme court opinion, People v. Hall, which described the Chinese as “a race of people whom nature has marked as inferior, and who are incapable of progress or intellectual development beyond a certain point, as their history has shown.”29
The Chinese American population was growing at its fastest clip in the 1860s, just as the federal government was debating the relationship between citizenship and race. The Fourteenth Amendment’s provision for birthright citizenship—anyone born in the United States is a citizen—made no racial restriction. Under its terms, the children of Chinese immigrants born in the United States were American citizens. As Lyman Trumbull, a senator from Illinois, said during the debates over the amendment, “the child of an Asiatic is just as much a citizen as the child of a European.”30 (This interpretation of the amendment was upheld in an 1898 ruling by the Supreme Court, in United States v. Wong Kim Ark.) Trumbull, who’d helped write the Thirteenth Amendment, was one of a very small number of men in Congress who talked about Chinese immigrants in favorable terms, describing them as “citizens from that country which in many respects excels any other country on the face of the globe in the arts and sciences, among whose population are to be found the most learned and eminent scholars in the world.” More typical was the view expressed by William Higby, a Republican congressman from California, and a onetime miner. “The Chinese are nothing but a pagan race,” Higby said in 1866. “You cannot make good citizens of them.”31
If the children of Chinese immigrants were U.S
. citizens, what about the immigrants themselves? Chinese immigrants’ most significant protection against discrimination in western states was an 1868 treaty between China and the United States. It provided that “Chinese subjects visiting or residing in the United States, shall enjoy the same privileges, immunities, and exemptions in respect to travel or residence, as may there be enjoyed by the citizens or subjects of the most favored nation.”32 That treaty, though, didn’t make Chinese immigrants into citizens; it only suggested that they be treated like citizens.
And what about the voting rights of U.S.-born Chinese Americans? Much turned on the Fifteenth Amendment, proposed early in 1869. While the aim of the amendment was to guarantee African Americans the right to vote and hold office, its language inevitably raised the question of Chinese citizenship and suffrage. Opponents of the amendment found its entire premise scandalous. Garrett Davis, a Democratic senator from Kentucky, fumed, “I want no negro government; I want no Mongolian government; I want the government of the white man which our fathers incorporated.”33 Michigan’s Jacob Howard urged that the Fifteenth Amendment specifically bar Chinese men by introducing language explaining that the amendment only applied to “citizens of the United States of African descent.”34 Presumably, Howard calculated that this revision, which amounted to Chinese exclusion, would improve the chances of the amendment’s passage and ratification. But congressional enthusiasm for immigration thwarted his proposal. George F. Edmunds of Vermont called Howard’s revision to the amendment an outrage, pointing out that his new language would enfranchise black men only by leaving out “the native of every other country under the sun.”35