Essay: Through the Wilderness with Sam Grant (Complete) (Part 9 of 9)
Honoring the legacy of U.S. Grant by actively affirming our inherited liberties.
Part 9
Today, looking back, the Reconstruction Era is often minimized as a sorry failure, a brief interlude of action and resolve by Grant and the Radicals that was soon overwhelmed by an opposing tidal wave of popular animosity.
That perspective seems to be reflected in the permanent exhibition layout of the National Museum of African American History and Culture on the National Mall in Washington, D.C., where Reconstruction is given only compressed treatment, constricted into a short set of wall panels running along a ramp between two floors of the Museum.
In September 2021, the Museum, to its credit, opened an expanded exhibit on Reconstruction in its special exhibitions space—but that exhibit is only scheduled to remain in place until August 2022, and, in any event, it focuses almost entirely on the broken promises and futilities of Reconstruction.
It’s certainly true that the national cause of civil rights for black Americans took a major step backwards with the end of Reconstruction in 1877, and the ground abruptly lost that year was not regained for nearly 90 years, until the tide turned with passage of the comprehensive Civil Rights Act of 1964 and the Voting Rights Act of 1965.
But the Civil War Amendments, the principles and policies animating Reconstruction, the civil rights laws Congress enacted during that period, the executive actions taken by Grant to implement those laws and carry forward the principles, and the courageous efforts and risks taken to advance the policies by countless Americans in the 1860s and 70s, like Amos Akerman and the U.S. Marshals, the workers of the Freedmen’s Bureau, and those brave citizens, black and white, Northern and Southern, who jeopardized their lives to serve the Reconstruction governments of the South—none of these was in any way a sorry failure.
All of them inspired and are reflected (if you will, they are recharged and resurrected) in the civil rights statutes of the 1960s (even in the precise words and phrases and concepts incorporated in those laws) and in many of the enforcement actions and policies pursued to advance the rights these statutes enshrine.
How shall we, in 21st-century America, tend the flame of this inspiration and carry forward the legacy of U.S. Grant’s victory in the Overland Campaign, his faithful stewardship of Lincoln’s vision, and his firm and undaunted leadership of the Reconstruction program?
Based on the unique history of America and the central place that slavery has played in that history—including the cataclysmic national War to abolish slavery, the fight for Reconstruction and civil rights for freed slaves, and the hundred-plus-year up-and-down journey in pursuit of effective enforcement of the Reconstruction Amendments—the extent to which we realize true equal liberty for the descendants of slaves in relation to all other citizens of the United States is a fit and proper measure of America’s progress toward freedom.
Of all Americans, the African American descendants of freed slaves have known historically the most pernicious and persistent barriers to full and free participation in the mainstream of American commerce and society. Others in the melting pot of America, including generations of destitute and persecuted immigrants who came to this Nation from overseas in great waves after the Civil War, had the opportunity (often begrudgingly given and with no mercy shown) to fight and claw and compete their way into the mainstream. But black Americans have had a very different experience.
As tough a challenge as any population of immigrants has had breaking into mainstream life in America, black Americans have had it much harder. So much suffering, so much suppression, hatred, and denial of rights, so many brutal challenges, so much to bear and so much to overcome.
According to Michael Wilbon, Arthur Ashe once said that “being black in America is like having another full-time job”—which, I am sure, is an apt description of the very minimum burden black Americans have borne and still bear today.
And for so many that burden has been compounded by the disgraceful lack of will among our public leaders to provide real security on the streets of many inner-city neighborhoods through effective and well-resourced local community policing.
As proclaimed in our Declaration of Independence, the United States is founded on the presumption that all people are endowed equally by nature with basic human rights, and the Constitution, as finally perfected by the Civil War Amendments, dedicates our Nation to achieving equality among all Americans in the recognition and protection of those rights.
Under these Constitutional principles, as Justice John Marshall Harlan correctly urged in his ringing dissents, all race-based favoritism, as well as favoritism based on color, religion, and nationality, is rejected. Our public institutions at all levels of government, Federal, State, and local, are charged with ensuring that all our citizens have the same legal rights and that all persons receive the equal protection of the laws.
Our Constitution and laws, as interpreted and applied, must be colorblind (and blind to race, religion, and ethnicity), and, as MLK preached, our goal must be that all of America’s children will be judged by the content of their character, not the color of their skin.
However far we have to go to achieve that goal, we must maintain an unwavering commitment as a Nation to abolishing all intentional racism in the civil life of our Republic—meaning throughout all the political, economic, and social interactions of public life covered by the Civil Rights Act, the Voting Rights Act, and the Fair Housing Act.
In furtherance of that commitment, we should restore and vindicate the full scope of Congress’s authority under the Civil War Amendments—not only by reinstating Congress’s power to require prophylactic preclearance of voting qualifications and procedures in certain States and counties under the Fifteenth Amendment, but also by recognizing that the Fourteenth Amendment reaches private conduct in circumstances where a State has failed to protect racial and ethnic minorities from private tyrannies that thwart their ability to participate equally in the civil life of their local communities.
Where such circumstances are shown, there’s a strong argument that the Fourteenth Amendment empowers Congress to require the State to furnish the missing legal protections or to provide for Federal remedies and prophylactic measures to ensure equal protection of the laws.
This recognition would free Congress from its awkward and strained reliance on the Commerce Clause for civil rights enforcement, as was pointed out by Justices William O. Douglas and Arthur Goldberg in their concurring opinions in Heart of Atlanta Motel v. United States (1964), the case in which the Supreme Court upheld Title II of the 1964 Civil Right Act. There, Justices Douglas and Goldberg persuasively urged that section 5 of the Fourteenth Amendment empowers Congress to prohibit racial discrimination by private actors in all public accommodations, whether or not affecting interstate commerce.
This reading of the Fourteenth Amendment would also assist greatly in returning the power to regulate interstate commerce to its rightful original conception—the power to regulate the instruments of interstate commerce, the goods and services that move in interstate commerce, and the terms of transactions involving such goods and services.
Our national commitment to equal rights under law should also translate into policies and programs that support the economic independence and self-secure autonomy of all Americans, including African Americans. We should avoid or end policies and programs that encourage over-dependence on government support or that weaken families and community structures or constrain the free economic choice of individuals through paternalistic conditions.
And any policy of so-called “racial equity” that promotes or is based on the idea that governing bodies should distribute benefits or privileges by reference to racial or ethnic groups or by reference to the demographic breakdown of the larger community should not be tolerated. Such a policy is anathema to the principle of equality under law.
In several provisions of our landmark civil rights laws, including in Title VII of the 64 Act, Congress has expressly repudiated any reliance on the demographic breakdown of the surrounding community as a proper measure of compliance or as evidence of unlawful discrimination.
Because they necessarily imply a racist assumption—that some people are unable to compete equally (in other words, are unequal) by virtue of their membership in one or another racial or ethnic group—all such policies carry the very real danger of deepening racial and ethnic animosities within our society and (what is even more unforgivable) of instilling such animosity in new generations of Americans.
To adapt the prophetic words of Justice Harlan from Plessy, programs designed to distribute the enjoyment of public benefits or privileges upon the basis of race or ethnicity under the pretense of “racial equity” will only set back the prospects of social justice and harmony and will fuel the fires of racial resentment and hatred that destroy so much human potential, deny the blessings of liberty, and betray the promise of republican citizenship for which our Nation was established and to which it was rededicated in the Civil War Amendments.