A Patriot's History of the United States: From Columbus's Great Discovery to the War on Terror

by Larry Schweikart

  Arrayed against Johnson and his dwindling alliance, the Radicals saw their influence grow. Thaddeus Stevens best expressed their position when he rejected the notion held by Southerners that the government of the United States was a “white man’s government.” “This is man’s Government; the Government of all men alike,” he countered.53 He therefore advocated full political equality, though not social equality, calling it a “matter of taste” as to whether people shared their seats at their dinner table with blacks.

  Between the Radicals on one side and the former Confederates on the other stood the so-called moderates. Moderates hated the black codes and wanted Republican dominance of the South, but they rejected full political equality for blacks. They agreed with the Radicals, though, that something had to be done about the laws passed by the restored—yet still rebellious—governments in the South, and together the two groups passed the Civil Rights Act of 1866, defining blacks as U.S. citizens and promising them “full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens.”54 This law made it a federal crime to deprive someone of his civil rights and, in conjunction with a new Freedmen’s Bureau law, established army tribunals to enforce civil rights cases.

  Johnson promptly vetoed the bill, citing a number of objections. He disliked the absence of a period of “adjustment” to citizenship that normally occurred with alien immigrants. Social discrimination in areas such as interracial marriage, he thought, also was necessary. His main concerns, though, were over upsetting the balance of power between states and the federal government. Johnson argued that the Civil Rights Act violated the Tenth Amendment. Congress narrowly passed the Civil Rights Act over his veto, thanks to the illness of one pro-Johnson voter who stayed home and the defection of a New York Democrat.55 Aside from Gideon Welles, all of Johnson’s own cabinet opposed him.

  It was increasingly clear that Andrew Johnson would not support any law that in any way significantly improved the status of African Americans. During the debate over the Fourteenth Amendment, Johnson’s views would become even more transparent.

  Aware that Southerners would immediately bring a court challenge to the Civil Rights Act, Republican legislators moved to make it permanent through the Fourteenth Amendment, stating, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” This made citizenship national rather than subject to state authority, marking a sea change in the understanding of the source of rights in the United States. No state could “abridge the privileges or immunities of citizens of the United States” or “deprive any person of life, liberty, or property without due process of law.” Nor could any state “deny to any person within its jurisdiction the equal protection of the laws.”

  Subsequently, all state legislation regarding infringements on the Bill of Rights would be subjected to federal review. It was a sweeping accomplishment in defining the rights of all American citizens as equal. Some, however, were more equal than others: while granting citizenship to the freedmen, the Fourteenth Amendment simultaneously denied citizenship to high Confederate officeholders.

  Meanwhile, from March to June 1866, the Joint Committee on Reconstruction held its hearings, substantially biased against the South. Calling seventy-seven Northerners living in the South, fifty-seven Southerners, and a handful of freedmen, the committee listened to hours of critical testimony, quickly dismissing hostile witnesses. Northern newspapers carried the testimony, which convinced Northern voters of Southern mistreatment of blacks. When the committee delivered its report, it convinced most objective observers that despite the lopsided way in which the committee gathered evidence, serious abuses of the freedmen continued. Worse, the committee concluded that a “state of rebellion” still existed in the South, and recommended Confederate states be denied representation in the Congress. With this report, Congress reasserted its authority over that of the executive to direct Reconstruction. Johnson remained set in his objections that no ratification process for the Fourteenth Amendment could occur until the Southern states were reinstated. He encouraged the Southern governments to reject the amendment, which they did: only Tennessee ratified it. Otherwise, the South held out for the midterm 1866 elections, which it hoped would oust the hated Radicals.

  Johnson’s response to the Fourteenth Amendment, combined with a maladroit campaign tour in late August, helped swing the election further to the Radicals. His obstinacy confirmed his Southern loyalties in the minds of many Northerners, and late summer race riots in New Orleans and Memphis seemed to expose the the failure of the president’s program. In the fall campaign Radicals linked support of the reconstructed governments to the treason of the hated wartime Copperheads. Voters agreed, and sent a two-thirds Republican majority to each house, with more Radicals than ever filling their number. Congress had finally gained ascendancy over Reconstruction policy.

  With Johnson essentially neutered, Congress proceeded to act on the joint committee’s recommendations by passing the Military Reconstruction Act. Under this law governments formed under presidential Reconstruction were swept away as illegitimate, and instead, the South was divided into five military districts, each commanded by a loyal Republican general. Johnson vetoed the act of March 2, 1867, and Congress overrode his veto. Under the First Reconstruction Act (its very title implying that Johnson had not presided over any legitimate reconstruction), Southern states now had to hold new constitutional conventions. Instead of the 10 percent rule that guided the earlier conventions, these new conventions were to be selected by universal manhood suffrage. Readmission to the Union required that the new state constitutions recognize the Fourteenth Amendment and guarantee blacks the right to vote. Congress would sit as the sole judge of whether a state had complied.

  The military commanders, à la the Fourteenth Amendment, prohibited high Confederate officeholders from voting or holding office, and had authority to determine what constituted a legal election. The process ensured that more blacks voted and fewer whites did. Commanders registered voters in large numbers—703,000 blacks and 627,000 whites—and in five states blacks were the majority of all voters. Military tribunals investigated a person’s loyalty, and some estimates suggest as many as half a million whites were disqualified.

  Thus emerged the hated triumvirate of scalawags, carpetbaggers, and black Republicans to put the Radical Southern governments in power. Scalawags, or Southerners who chose to ally with the Republicans, acted out of a variety of motivations. (The term “scalawag” was a folk expression for “mean, lousy cattle.”) Many scalawags were prewar Whigs never comfortable within the Democratic Party. Some, such as Confederate General James Longstreet, saw the Republicans as the only hope for Southerners to regain control of their states. Others included Joe Brown, the governor of Georgia (who switched parties only temporarily for financial gain), and the “Grey Ghost,” Virginia Colonel John Singleton Mosby. The term “carpetbaggers” referred to Northerners who came south to impose their views on Dixie. They traveled with their suitcases, or carpetbags, and were scorned by Southerners as do-gooders. Some, if not most, were well-intentioned teachers, missionaries, doctors, and administrators who all flocked to the South to assist both freedmen and the devastated white communities. But more than a few were arrogant and impulsive, caring little for the traditions they crushed or the delicate social tensions that remained. The third leg of the Reconstruction tripod, the black Republicans, were also hated by all but a few progressive Southerners. At best, Southerners saw free blacks as pawns of the Republicans and at worst, a threat to their social order.

  Nevertheless, for the first time, under these Reconstruction governments, African Americans won seats in the U.S. government. Black Reconstruction, as Southerners called it, put a number of freedmen in positions of power. Between 1869 and 1901, there were two black U.S. senators and sixteen congressmen elected. Like many of his colleagues
, Blanche Kelso Bruce (1841–98), the U.S. senator from Mississippi, was highly qualified. Born into slavery in Virginia, Bruce was tutored by his master’s son and worked as a printer’s apprentice. When the Civil War started, he escaped north, and after the Union Army rejected his attempt to enlist, he taught school, attended Oberlin College, and worked as a steamboat porter. After the war Bruce moved to Mississippi, where he became a prosperous landowner and served in low-level elected offices. Serving as sheriff of Bolivar County, he gained the favor of the Republicans at Jackson, and after a few high-profile appointments, was elected to the Senate by the Mississippi legislature in 1874. Bruce fought against the Chinese Exclusion Act, spoke in favor of Indian rights, and became the first African American to chair a Senate committee. Once the Redeemer Democrats regained power, they ousted him, but Bruce had so impressed the national Republicans that he received a handful of votes for vice president in 1880.56

  Another black U.S. senator, Hiram Revels, was a free man in North Carolina before attending school in the North. Ordained a minister by the African Methodist Church, Revels headed congregations in Ohio, Indiana, Illinois, Tennessee, Kentucky, Missouri, and Kansas before moving to Maryland. After April 1861 he worked for the Union cause in Maryland by organizing black regiments and then recruited African Americans to serve in Missouri. Like Bruce, he settled in Mississippi after the war and held local alderman positions, then state senator positions in Adams County before the Mississippi legislature named him to fill Jefferson Davis’s seat. His appointment actually preceded Bruce’s, though it was much shorter, lasting only until the end of 1871, when he returned to assume the presidency of Alcorn College, Mississippi’s first black university.

  Bruce, Revels, and other African Americans elected during Black Reconstruction, regardless of their qualifications, only stayed in office by the good graces of the Republican governments. More precisely, they could only hold office as long as the military allowed them to. The presence of black elected officials exaggerated the perception that the Radical governments ruled only through force. Increasingly, there was also a real awareness that some were horribly corrupt. Their legislatures issued bonds for any project, no matter how financially unstable. Virtually all the governors accepted bribes to grant charters or franchises: Governor Henry Warmoth in Louisiana, for example, reputedly stashed away a cool $100,000 from public works contracts.57 Alabama printed $18 to $20 million worth of railroad bonds, and the overall debt of the eleven former Confederate states was estimated to exceed $132 million by 1872, yet with no tangible results for the expenditures.58 Printing costs mysteriously soared: in South Carolina, the cost of state printing from 1868 to 1876 surpassed the total printing expenses from the entire period from 1789 to 1868! Legislators put in requests for “supplies” such as perfume, hams, ladies’ bonnets, and champagne—all (obviously) essential to passing good laws.59

  Reconstruction governments thus featured a disturbing mix of Northern reformers, Southern opportunists, and a sea of inexperienced blacks with practically no capital and little economic clout. Had all the motives of the actors been pure, the task of running the governments efficiently and without corruption would have been difficult. And without doubt, many in the Reconstruction governments sincerely wanted to improve the lives of all. They introduced the first public schools in the nation, enacted prison and asylum reforms, and enforced the Fourteenth Amendment rights of the freedmen. Without the support of Southern whites, absent their own economic base, and lacking any political experience, the governments did what governments often do: they threw money at the problems. No transportation? Issue railroad bonds that would never be paid. No education? Throw up a school and assume educated blacks would somehow be respected by their former masters.

  It would be a mistake to assume that the Radicals lacked Democratic support for these measures. Even in the South, most of the railroad bond measures were bipartisan and remained so until the Panic of 1873.60 Only after a new group of Bourbon (Redeemer) Democrats had appeared—those interested in repudiating the debts and rejecting state aid to railroad projects—did support for the measures dry up. Moreover, concern over graft and government excess grew to the point that when the Bourbons took the scene after 1870, they found voters receptive to reducing the size of government and lowering taxes.

  As these trends unfolded in the South, Republicans in Washington had a veto-proof majority, although Johnson still had enforcement powers. As commander in chief of the army—the only institution capable of actually putting Reconstruction policies into practice—Johnson could still control the pace of change. He also found a surprising ally in the Supreme Court, which in the Ex parte Milligan case (1866) unanimously ruled against imposition of martial law in cases where civil administration still functioned. This cut the legal legs out from under the military governance in the South, and the Court proceeded to rule against loyalty oaths and allowed civil suits against military governors for damages. Congress, sensing where the Court was headed, used its discretionary powers granted in Article III of the Constitution to state that the Court had no jurisdiction in cases of habeas corpus, the issue that had been spawned by Milligan. Congress succeeded in evading the Constitution’s stipulation that only wartime suspension of civil government was legal—the war was over—but the Court had no way to enforce its ruling. Checkmated, the Court withdrew from accepting most other Reconstruction-related decisions.

  Now only Johnson stood between Congress and its vision of a prostrate South. Concerned the president might outmaneuver them by using his constitutional power as head of the executive branch to go directly through the officer corps in the Union Army, in February 1867 the Radicals passed the Tenure of office Act, a measure that prohibited Johnson from removing federal office holders without Senate approval. This act violated a seventy-eight-year precedent and in essence handcuffed the president from removing incompetent or even dangerous officials if they had allies in the Senate. Johnson, as expected, vetoed the measure, and Congress, as expected, overrode the veto. At the same time, Congress passed the Command of the Army Act, requiring presidential orders or orders from the secretary of war (Radical sympathizer Stanton) to go through the general of the army (in that case, Ulysses S. Grant). Moreover, it stipulated Grant could not be assigned to duty in any area other than Washington (anticipating that Johnson might send him on a “fact-finding” mission to, say, China!).

  In fact, Grant wanted to maintain a low profile. Although he seldom agreed with Johnson, Grant appreciated the separation of powers and understood the necessity for keeping the executive branch an independent powerful check on Congress. Although his sympathies in matters of Reconstruction favored the Republicans, he nevertheless supported Johnson’s orders and attempted to execute them.

  Johnson, convinced many of these congressional acts were unconstitutional, decided to challenge the Tenure of Office Act. He removed Stanton in August while Congress was adjourned, replacing him with Grant as secretary of war. He sent the Senate an explanation of his reasons in a December communication, but it was too late. The Senate rejected Johnson’s statement for removing Stanton by a whopping 35 to 6 vote, and on January 14, 1868, it was time for Grant to pick up his things and vacate the War Department office. Scarcely a month later, in February 1868, Johnson dismissed Stanton a second time, and replaced him with Lorenzo Thomas.

  Modern readers must note that in the nineteenth century context of separation of powers, the Congress had no constitutional right of review for executive appointment officers. In firing and hiring cabinet members, Johnson was not only fully within his constitutional rights, but he was in keeping with the actions of virtually every chief executive before him. Realistically, however, the Radicals saw Johnson as an obstacle to their programs, and neither the law nor the Constitution could be allowed to stand in the way.

  At any rate, with the Thomas appointment, a truly extraordinary scene unfolded. Stanton refused to vacate his office and had a warrant issued for Thomas’s arrest
; whereas Johnson sent Thomas’s name—the second in a few months—to the Senate for approval. This time, there was no doubt among the House Judiciary Committee members, who recommended eleven articles of impeachment for “high crimes and misdemeanors.” Nine articles specifically related to Stanton’s (illegal, in the eyes of the House) dismissal; one involved Johnson’s speeches; and the eleventh catch-all article lumped together every charge the Radicals could find. It was Thaddeus Stevens’s moment of triumph: so ill that he had to have the clerk read his speech inaugurating the impeachment committee, he was nevertheless so obsessed by enmity toward Johnson that he lashed out, “Unfortunate, unhappy man, behold your doom.”61 So spiteful was Stevens’s speech that the Northern press stood back aghast. The New York Herald wrote that Stevens had “the bitterness and hatred of Marat, and the unscrupulousness of Robespierre.”62

  Although many historians condemn the impeachment process as rash, reckless, and unwarranted, it is significant that the full House vote was a substantial 126 to 47. This was a ratio far higher than the House impeachment vote against Bill Clinton a century later (228 to 206 on the key article of perjury following a sexual harassment suit brought against him). A Senate trial of Johnson soon followed.

  Although modern Americans are slightly more familiar with the processes of impeachment because of the Clinton case, the mechanics are nevertheless worth restating. After a full House vote in favor of articles of impeachment, the president is officially impeached, but then must stand trial before the Senate. The prosecutors of the case are House managers who present the evidence for removing the chief executive. According to the Constitution, the House, and only the House, determines whether the offenses constitute “high crimes and misdemeanors”—in other words, once the House has turned out articles of impeachment, the Senate’s only constitutional function is to determine guilt or innocence. Senators cannot (at least, according to the Constitution) determine that a president is guilty, yet conclude that removal is too great a penalty. Rather, the House has already found that if the president committed the acts of which he was accused, the penalty is automatic.