Essay: Through the Wilderness with Sam Grant (Complete) (Part 4 of 9)
He led the advancement of Reconstruction and championed the cause of civil rights for former slaves.
Part 4
When the U.S. Constitution was ratified, there were more than 700,000 slaves of African descent in the United States, and they constituted nearly 18% of the total population as counted in the first U.S. census of 1790 (more than 39% of the population of Virginia and more than 32% of Maryland). On the eve of the Civil War, as reported in the 1860 census, the population of slaves totaled 3,950,000, representing more than 32% of the population of the slaveholding States and 12.5% of the total U.S. population.
It is owing to these many Americans, who endured generations without freedom, whose progeny survived the brutal yoke of slavery, that America grew as a racially and culturally diverse nation from its very beginnings. And out of that endurance and survival through bondage and beyond, the descendants of slaves in America have made essential contributions to the vibrant and original fabric of the Nation.
The Union victory in the Civil War and the adoption of the Reconstruction Amendments ushered in the first real opportunity in our history to inaugurate true equal rights for the former slaves and their descendants.
Toward that goal, after Lincoln’s shocking murder (the first assassination of an American President) and the brief period of intense national anger and mourning that followed it, and after the vast Union Armies of the East and the West, led by Grant and Sherman, paraded in victory and jubilation over two grand celebratory days in Washington and were then rapidly, almost recklessly, disbanded, U.S. Grant took charge of implementing Reconstruction.
As directed by the Republican-controlled Congress, ten of the former Confederate States were placed under the governance of the much-reduced United States Army through military departments, and during the remainder of what would have been Lincoln’s second term in office, under the Presidency of Andrew Johnson, Grant supervised the War Department’s Reconstruction mandate, both as general in chief and for a while as Acting Secretary of War (after Johnson removed the Republican Stanton, an action that gave rise to Johnson’s impeachment).
Grant chose the generals who oversaw the governing military departments and personally directed their actions. Through the Freedmen’s Bureau, the Federal Government assisted former slaves with housing, food, education, and labor opportunities, and Grant deployed the Army as necessary to protect the work of the Freedmen’s Bureau and in response to riots and massacres of blacks perpetrated by former Rebels.
In 1866, over Johnson’s veto, the Republicans in Congress enacted a “Civil Rights Act” to enforce the Thirteenth Amendment that declared that all former slaves and other citizens of every race and color “shall have the same right in every State”—
“to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties and to none other, any law, statute, ordinance, regulation, or custom to the contrary notwithstanding.”
Following ratification of the Fourteenth Amendment, the Civil Rights Act of 1866 was reenacted and strengthened, and Congressional debates surrounding its reenactment make clear that the general rights enumerated in this Act were considered fundamental to citizenship in a republic and were among the “privileges or immunities of citizens of the United States” that the Republican members of Congress intended to protect in Section 1 of the Fourteenth Amendment.
No doubt these privileges and immunities would also include other general time-honored rights that the several States had commonly afforded to their own (white) citizens under their constitutions and laws before 1868 (and in some of the original States, like Virginia, since before the establishment of the American Republic)—including freedom of speech, assembly, and religion; the right to vote in State and local elections; the right to keep and bear arms; the right to trial by jury, due process of law, and freedom from unreasonable searches and seizures; criminal procedural rights and protections against double jeopardy and self-incrimination; the right to marry and raise a family; the right to a public education where public schools are established; and the right to travel and purchase common carriage on the public highways, ferries, and railroads.
Further, to many Republicans and supporters of the Fourteenth Amendment, these privileges would encompass the right to stay at inns or to access and patronize other places of public accommodation on the same terms offered generally to others, since the duty of innkeepers and proprietors of similar public accommodations to serve all comers on common terms was recognized at common law and was codified in State statutes.
The Republican framers of the Fourteenth Amendment understood that State law would continue to determine the content of these general civil rights and the procedures available for their exercise and protection, the specifics of which would vary in certain respects among the States. But whatever their content and availability in a particular State, the Privileges or Immunities Clause would now require the State to ensure that these general rights of citizenship be “the same” for all citizens in the State without regard to race, color, status as a freedman, etc.
This original understanding of the Clause has been well explained by Professor John Harrison of the University of Virginia Law School—first in his seminal article Reconstructing the Privileges or Immunities Clause, published in volume 101 of the Yale Law Journal in 1992 (when Harrison was a Deputy Assistant Attorney General in the Office of Legal Counsel of the U.S. Department of Justice, where I had the privilege of serving under him as an Attorney-Adviser).
This new requirement of uniformity in the general rights afforded to all classes of citizens within a State supplemented the original Privileges and Immunities Clause (also known as the Comity Clause) in Article IV, Section 2 of the Constitution, which requires States to recognize and respect the rights of citizens from other States: “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.”
Contrary to the arguments of some scholars in recent years, the Privileges or Immunities Clause of the Fourteenth Amendment was not originally intended or understood to incorporate as against the States the substantive protections afforded to individuals vis-à-vis the Federal Government under the Bill of Rights; rather, it was designed to require equal treatment under State law of citizens of all races and backgrounds, whatever substantive rights of citizenship were afforded by the law of the State.
Under the protective supervision of Grant’s Army, elections were held in the former Confederate States, and blacks were able, for the first time in history, to participate effectively as voters and candidates. Many blacks were elected to the reconstructed State Legislatures and appointed to State offices, and by 1870 several were elected to the U.S. House of Representatives and appointed to the U.S. Senate by the new State Legislatures.
Grant was viewed by most Northerners and universally by black Americans as the heir to Lincoln, as the essential man who had orchestrated the defeat of the Confederacy, and as the savior and protector of freedmen. He was also viewed favorably by a good number of Southerners and Democrats for the equable and dignified way he had treated Lee and his Rebel army at Appomattox. As a consequence, Grant was elected President in 1868 with a strong popular mandate. In 1872, he was reelected by a landslide.
In several Southern States, Rebel veterans and insurgents had organized an armed resistance to Reconstruction, including thousands acting under the trappings of the Ku Klux Klan who resorted to violence and nighttime terrors to prevent black citizens from voting, running for public office, serving on juries, and exercising other rights, privileges, and immunities enjoyed by whites.
To strengthen his hand in responding to this organized resistance, Grant worked with Congress to establish the U.S. Department of Justice in 1870 and to pass the Enforcement Acts of 1870 and 1871, three laws enforcing the Reconstruction Amendments and the Civil Rights Act of 1866. One of the three Enforcement Acts, also known as the Ku Klux Klan Act of 1871, authorized Grant to prosecute those who conspired to suppress civil rights and to suspend habeas corpus where necessary to address the insurgency.
Grant made aggressive use of these new statutory authorities. He suspended habeas corpus in nine counties of South Carolina in October 1871, and he deployed his Attorney General, Amos Akerman, along with U.S. Marshals supported by the Army, to bring the Klansmen to justice. Working with amazing dedication and intensity in a period of just a few months, Akerman and the Justice Department succeeded in indicting thousands of insurgents across the South, including nearly 500 in South Carolina.
Through these and other efforts, Grant broke the back of the Klan, and record numbers of blacks were able to vote in elections throughout the South.
Like Lincoln before him, Grant saw Reconstruction as a moral imperative for the Nation—as the necessary last campaign beyond Appomattox, critical for securing the benefits of citizenship to the millions freed from slavery through the great sacrifices of the Union War victory and to their descendants. Grant’s personal commitment to Reconstruction as a national priority and his active leadership in carrying forward these policies were his shining legacy as President.
In the end, to the shame of the United States, the program of Reconstruction lasted only as long as Grant’s Presidency.
Worn down by a deep economic recession in 1873, by several political corruption scandals, and by the persistent complaints of white Southerners about Northern interference in their affairs, most Americans grew fatigued with what seemed like a never-ending coda to the Civil War, and as Sherman had predicted, the majority in the North lost the will to carry on the battles necessary to achieve full civil rights for freed slaves.
With the election of 1874, the Democrats gained control of the U.S. House of Representatives for the first time since before the War, and by the election of 1876, it was clear that Reconstruction would not continue once Grant, the unifier, left office. Among other political realities, the Democratic majority in the House would no longer appropriate the funds needed to deploy Federal troops to protect the civil authority of Reconstruction governments.
Reflecting this national mood, the Presidential election of 1876 between Republican Rutherford B. Hayes, the Governor of Ohio, and Democrat Samuel J. Tilden, the Governor of New York, was tightly contested.
Tilden won the popular vote but failed to gain a clear electoral college majority; he had 184 uncontested electoral votes to Hayes’s 165, with 185 required for victory. The outcome turned on 20 disputed electoral votes—those from South Carolina, Florida, and Louisiana and one from Oregon. There were claims of electoral fraud and intimidation of black voters in the three Southern States, and each of the States with disputed votes submitted two competing electoral tallies to Congress. Hayes needed all 20 of the disputed votes to gain the Presidency; Tilden needed only one.
With Grant’s approval, on January 29, 1877, Congress created a special Electoral Commission, which voted 8 to 7 (along party lines) to award the disputed electoral votes to the Republican Hayes. But the Democrats in Congress threatened to block the counting of the electoral votes and delayed the resolution of the election through filibusters and adjournments in the House.
Finally, in the early hours of Friday morning, March 2, 1877, just three days before Inauguration Day, the Democratic Speaker of the House ended the filibusters and allowed the vote to conclude after Hayes let it be known that he would agree to remove the remaining Federal troops from the Louisiana and South Carolina Statehouses and allow the restoration of local control in the South, provided the restored governments pledged to respect the civil rights of all citizens. Hayes was declared the winner and sworn into office.
As soon as the Southern Democrats regained control in their States, they acted in disregard of any pledges made:
They quickly imposed voter qualification requirements that effectively disenfranchised most blacks, flouting the Fifteenth Amendment;
They adopted “Jim Crow” laws and local policies that expressly required pervasive racial segregation throughout Southern society, in marriages, schools, courtrooms and civic buildings, public accommodations (restaurants, hotels, etc.), leases, contracts, deeds, and other business transactions and social and interpersonal relationships; and
They permitted and encouraged, through the systematic withholding and failure of State civil rights enforcement, private vigilante groups like the Klan to combine and conspire to deprive blacks of the privileges and immunities enjoyed by white citizens.
Every one of these discriminatory enactments, segregationist policies, and failures of State enforcement flagrantly violated the plain terms of the Federal civil rights laws and Section 1 of the Fourteenth Amendment by abridging the privileges or immunities of citizenship on the basis of race and color or by denying blacks the equal protection of State laws.
President Hayes continued to support Federal civil rights enforcement as a national policy and succeeded by veto in preventing Congress from repealing the civil rights acts, including the Ku Klux Klan Act, but the Democratic majority in the House refused to appropriate the money required for effective Federal enforcement of these laws.
Reconstruction as an active enforcement program of the Federal Government was over.