Читать книгу The Smart Culture - Robert L. Hayman Jr. - Страница 19

A review of the Reconstruction debates in Congress leaves the reader with two overwhelming impressions. First, it is clear that constitutional Reconstruction did not proceed through a logical, scripted progression: the Reconstruction amendments to the Constitution—the Thirteenth, Fourteenth, and Fifteenth Amendments—and the civil rights legislation designed to effectuate them, were not simultaneously conceived as parts of a coherent, comprehensive plan. Rather, the Reconstruction effort was, on the whole, quite pragmatic, responding to the evidence and the exigencies of the day. It was undoubtedly held together by a unifying purpose—the protection of the freedmen—but the means of achieving this broad goal were decidedly ad hoc.

Consider the cornerstone of constitutional Reconstruction, section 1 of the Fourteenth Amendment, with its guarantee of the “equal protection of the law.” “[T]he principle of the first [section],” noted Congressman Henry J. Raymond during the congressional debates in 1866, “which secures an equality of rights among all the citizens of the United States, has had a somewhat curious history.” Indeed it had. It was, recall, John Bingham who wrote this section. In 1857 Bingham had insisted that the Constitution guaranteed “the equality of all, the equal protection of each.” It was, at the time, a distinctly minority view; the constitutionalization of slavery in the Dred Scott decision was the clearest testament to that. But in 1865 Congress endeavored to reverse the situation with the Thirteenth Amendment to the Constitution: it abolished slavery, and made all Americans free and equal.

But it made them equal only implicitly. The Thirteenth Amendment contained no expressed guarantee of equality, which is why Republican senator Charles Sumner of Massachusetts, a former lecturer at Harvard Law School, had proposed as a substitute amendment a provision declaring that, “All persons are equal before the law.” “[E]quality before the law,” Sumner explained, “gives precision to that idea of human rights which is enunciated in our Declaration of Independence. The sophistries of Calhoun, founded on the obvious inequalities of body and mind, are all overthrown by this simple statement.” But Lyman Trumbull of Illinois, chair of the Senate Judiciary Committee, favored the principal amendment; abolish slavery, he reasoned, and equality invariably follows. In deference to his colleague, Sumner withdrew his substitute.

But simply declaring an end to slavery did not in fact ensure equality. The congressional debates of the subsequent years are replete with testimony on the relentless oppression of the freedmen: widespread discrimination by public and private actors, often in collaboration, and not infrequently culminating in the institution of virtual slavery through sharecropping schemes, apprenticeship laws, and the brutal enforcement of “vagrancy” restrictions. The freedmen could not buy or sell land, could not contract, could not testify in court, could not travel. Trumbull was speaking of theory when he said that “it is perhaps difficult to draw the precise line, to say where freedom ceases and slavery begins”; but the same was true in practice: slave or not, the “freedmen” certainly were not “equal.” A white North Carolina farmer spoke for a generation of more “enlightened” southerners when he offered that “I haven’t any prejudices against ‘em because they’re free but you see I can’t consider that they’re on an equality with a white man.” Or as George C. King, a former slave in South Carolina, put it, “The master he says we are all free, but it don’t mean we is white. And it don’t mean we is equal.”

Congress was quick to respond. Bingham’s original draft of the Fourteenth Amendment, reported to the House in February 1866, would have authorized Congress to enact “all laws which shall be necessary and proper to secure . . . to all persons in the several States equal protection in the rights of life, liberty, and property.” But the proposal faced opposition from across the political spectrum—Republican congressman Giles Hotchkiss of New York, for example, lamented that it “is not sufficiently radical”—and Bingham joined the vote to table the amendment. Acting under the authority of the Thirteenth Amendment, Congress then passed, over Andrew Johnson’s veto, the Civil Rights Act of 1866, which declared the citizenship of the freedmen, and guaranteed to citizens “of every race and color” the “full and equal benefit of all laws.”

For the framers of the Thirteenth Amendment—who were, after all, also the crafters of the civil rights bill—the abolition of slavery in the Thirteenth Amendment evidently contained the equality guarantee that Sumner desired: it was simply implicit, not explicit. The Civil Rights Act made this protection a part of the expressed law.

But protection by statute was insecure: hostile courts or subsequent congresses could nullify or repeal the provisions. A revised Fourteenth Amendment was introduced in the spring of 1866; when it was ratified, in 1868, Congress had effectively constitutionalized the Civil Rights Act. The language of section 1 of the Amendment in fact runs parallel to the Act:

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. 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 law.

The reasons behind the minor change in syntax in the equality guarantee—from “full and equal benefit of all laws” to “equal protection of the law”—are by no means clear: the change appears, on the one hand, to broaden the scope of the states’ duty, by imposing on them an affirmative obligation to “protect”; but it may be, on the other hand, no more than Bingham’s preference for a convention that he had employed a decade earlier.

But the picture, in any event, is completed in 1870, when the Civil Rights Act of 1866 is reenacted verbatim: now, the reasoning went, the act is authorized by the powers conferred on Congress in the Fourteenth as well as the Thirteenth Amendments. So, in effect, two constitutional amendments and two identical statutes were needed to assert the simple but vital principle of “equality under the law.”

This history also captures in microcosm the second overwhelming impression generated by a review of the record: there is an omnipresent sense that the framers of Reconstruction are struggling mightily to reconcile the vast gulf between aspiration and actuality, between the real and the ideal. This meant, on the one hand, that much of their effort was designed to realize the guarantee of equality that they once thought was implicit in the Constitution, and that they subsequently made express. It also meant, on the other hand, that their aspirations were always informed by the real obstacles of the day: the political realities of the fragile union, the practical intransigence of the former master class, and the philosophical limitations inherent in the ideology of the natural order. They were, in general, committed to some vision of equality, but it was a vision invariably clouded by dissensus, ambivalence, and uncertainty. And, of course, by contradictions.

The opponents of Reconstruction tended to labor under the old paradoxes: they were opposed to equality, for example, even if their arguments were ultimately rooted in the concept. In 1864, Democratic Congressman McDowell voiced his opposition to the creation of a Freedmen’s Bureau: “We also have a proposition to establish a Bureau of Emancipation,” McDowell complained. “Why do they overlook all the interests of the white men of the nation and rush blindly to the negro, and think nothing and do nothing but what they fancy is for his welfare?” It was, apparently, an early plea for race-neutrality, for “color blindness,” but it lacked something in the way of consistency. “We have a proposition also,” McDowell continued,

pending in the other branch of Congress, which declares that all laws shall be repealed which make a distinction between the races—between white and black. Sir, this is the culmination of all the hopes of these radical fanatics. Here is the goal toward which they are directing all their efforts: to debase the white man to the degraded level of the African negro.

Reconstruction’s defenders had their own difficulties with the concept of equality. Bingham insisted, on the one hand, that “[t]his Government rests upon the absolute equality of natural rights amongst men.” Then again, on the other hand, “[t]here is not, and cannot be, any equality in the enjoyment of political or conventional rights, because that is impossible.” Clarifying—in a fashion—Bingham explained that “Nobody proposes or dreams of political equality any more than of physical or mental equality. It is as impossible for men to establish equality in these respects as it is for ‘the Ethiopian to change his skin.’” What then was the “equality” guaranteed by our constitutional democracy? “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which that Constitution rests—its sure foundation and defense.”

The ambiguity was contagious. Thaddeus Stevens of Pennsylvania was perhaps the most radical of Republicans. But in June 1864, Stevens was moved to address Democratic Congressman Samuel S. Cox of Ohio: “The gentleman will allow me to say that I never held to the doctrine of negro equality.”

“Then,” asked Cox, “I understand the gentleman from Pennsylvania not to hold that all men are created equal?”

“Yes, sir,” Stevens replied, “but not equality in all things—simply before the laws, nothing else.”

Years later, speaking in support of the “equal protection” guarantee of the Fourteenth Amendment, Stevens would explain his understanding of “equality . . . before the laws”:

the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford * equal’ protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same.

But Stevens’s Pennsylvania colleague, Democratic congressman Samuel J. Randall, thought the guarantee went further: “The first section proposes to make an equality in every respect between the two races . . . I feel it, in consequence, my imperative duty to oppose this section.”

What the Democrats ostensibly feared—and what they seemed to detect in virtually every Reconstruction measure—was a movement to destroy the “natural” distinctions between the races, to ensure not merely “legal equality,” but “political equality” and “social equality” as well. But what did these terms mean?

Roughly, “legal equality” embraced “legal” or “civil” rights: those rights, according to English jurist William Blackstone, that were enjoyed by all citizens, subject only to general restriction for the public good. The rights to buy and sell property and labor, and to sue to enforce these rights, were perhaps the most prominent “legal” rights. There was a widespread consensus that, almost by tautology, the Fourteenth Amendment guaranteed “legal equality” to the freedmen.

“Political equality,” meanwhile, embraced the privileges of self-governance. These “political” rights—the rights to vote and to hold office, and, depending on one’s view, the right to serve as jurors (a “legal” right in some eyes)—could be limited by the terms of the democratic compact, as it had been in America, the home of the “white man’s government.” The question of “political equality” for the freedmen was much debated during Reconstruction, but largely settled in 1870 with the ratification of the Fifteenth Amendment.

“Social equality,” however, was quite another matter. It was the most inclusive concept, embracing those aspects of social life inherent in economic class and social rank. “Social equality” was the most direct challenge to the natural order: it even threatened—through what was variously referred to as “amalgamation” or “miscegenation”—to destroy the very biological distinctions on which the order was based. For Democrats, every Reconstruction measure was a misguided attempt to ensure “social equality,” and most would lead ultimately to the “mongrelization” of the races through intermarriage. It was a painfully constant refrain; as Tennessee Republican James Mullins put it in 1869,

Sir, it is alarming that the Democratic party should be so much alarmed about their “social rights.” In the name of common sense and justice and truth what need they be alarmed about? I see nothing in the world alarming. But they are dreadfully alarmed about “social rights” and “social equality.” They seem at least to be dreadfully alarmed lest somebody will marry a negro or a negro will marry somebody else.

Taken individually, each of the various concepts—“legal,” “political,” and “social” equality—admitted of its own ambiguities; collectively, they made most discussions of “equality” nearly incoherent. Consider, as one early example, the debate in 1864 over the use of railcars in the District of Columbia. Charles Sumner had introduced a resolution guaranteeing to all persons of any race the “equal enjoyment of all railroad privileges.” Thomas A. Hendricks of Indiana objected: “I do not understand from the Senator who has introduced this resolution that any negro has been denied the right to ride in the cars which, at the expense of the company, have been provided for their accommodation.”

Sumner responded that “[t]here may be here and there, now and then, once in a long interval of time, a car which colored persons may enter, but any person who traverses the avenue must see that those cars come very rarely.” Henry Wilson added this anecdote:

The other day a friend of mine came up from the Army, and with him two colored men, and they were forced to ride in a cattle car while he rode alone in a freight car . . . In this case these persons were forced into the cattle car, and the gentleman told me he rode nearly all the way alone, when there was room for a large number of other persons in the car. He inquired about it of two officers, and the answer was that the cattle cars were for “the niggers.”

Hendricks was sure that he now saw the Republican plan:

I am satisfied, sir, that the Senators have now declared the end to which we are to come, and that by the action of the Federal Government the social as well as the political equality of the negro is to be forced upon the white race. If that be the judgment of the country we shall have to accept it. The people that I represent in this Chamber have not yet adopted that sentiment. The distinction between the two races is yet maintained in Indiana. How much longer it will be maintained I am not able to say.

Daniel Clark of New Hampshire now intervened: “I think the Senator from Indiana has mistaken the resolution. I understand him to characterize this as a resolution to force the negro into the cars. I understand it to be a resolution to prevent you from forcing him out—not to force social equality, but to prevent an outrage upon him.”

Wilson tried to explain his vision of the “equality” behind Sumner’s resolution:

I do not want to force on the Senator from Indiana or anybody else any class of men with whom he does not choose to associate, but I think the true policy is to let men stand equally before the law, to let men win their own positions, let them have the privilege of making out of themselves all that God and nature intended that they should be.

The resolution passed in the Senate by a vote of thirty to ten. One week later, the Senate debates caught the attention of Democratic congressman Samuel S. Cox of Ohio. He, too, was certain he had detected the Republicans’ motives:

The Senate of the United States is discussing African equality in street cars. We have the negro at every moment and in every bill in Congress. All these things, in connection with the African policies of confiscation and emancipation in their various shapes for the past three years, culminating in this grand plunder scheme of a department for freedmen, ought to convince us that that party is moving steadily forward to perfect social equality of black and white, and can only end in this detestable doctrine of—miscegenation!

Maintaining—or even detecting—the distinction between “legal equality” and “social equality” was no simple task, but as these debates suggest, it was in some minds a terribly important one. For the Democrats, the Republicans were always crossing the line; for the Republicans, it was all Democratic paranoia; both sides agreed that there was a line; and neither side had any idea where or how to draw it.

This is one of the reasons that even the equality they agreed on—“legal equality”—was itself so ambiguous: increasingly, its meaning was defined by negative reference to terms that had little independent integrity and that could not be easily distinguished. Legal equality was not social equality, and the consensus ended there.

But this generated another dilemma, one that the framers of Reconstruction could not avoid and yet did not resolve. Divorced from the theoretical realms of the “political” and the “social,” “equality” was to do its work in the realm of “law.” But that can be a decidedly abstract realm: securing “legal equality” can be an exercise in mere rhetoric or form; measuring conformity to the mandate becomes a matter of deductive fiat. “Legal equality” might require, for example, the desegregation of railcars, or, for that matter, the end of antimiscegenation laws; then again, it might not, depending entirely on the frame of reference.

Consider one final colloquy. In January 1866, during the debates over the civil rights bill, Democratic senator Reverdy Johnson of Maryland charged that the guarantee of “equal benefit of all laws” was a guarantee of the right of miscegenation. Under the proposed law, Johnson maintained, “it will be admitted that the black man has the same right to enter into a contract of marriage with a white woman as a white man has.” Laws prohibiting interracial marriages would thus operate unequally and would be void.

But Republican William P. Fessenden of Maine saw it differently; he utilized a different point of comparison. The black man, according to Fessenden, “has the same right to make a contract of marriage with a white woman that a white man has with a black woman.” Laws prohibiting all interracial marriages would thus operate equally, and would be valid.

It was impossible—it is still impossible—to say who is correct; as Johnson put it, “whether I am wrong or not, upon a careful and correct interpretation [of the bill], I suppose all the Senate will admit that the error is not so gross a one that the courts may not fall into it.”

This was the hopeless conundrum of legal equality. Separated from “social” life—separated from the “real” world—equality under law too easily devolves into empty form. “Legal” equality becomes wholly dependent on an abstract frame of reference, and that reference—the relevant comparison—is utterly arbitrary. There is thus no way to measure “legal equality”: it exists—or not—only by proclamation.

“Legal equality” is a profoundly problematic concept. At its best, it is ambiguous and indeterminate; at its worst, it dissolves into empty form. Many of the framers of Reconstruction recognized its problems at the time. But it was all they could agree on.

What, then, is a fair verdict on the Reconstruction effort? On the one hand, it might be said that the framers of Reconstruction lacked the resolve to provide practical redress to the problems of the freedmen, and the foresight to see how their general remedy—the guarantee of legal equality—could be so easily perverted by subsequent generations. Their inability, or unwillingness, to enter the realm of “social equality” meant that the only economic justice they could secure was through the same formal liberty bequeathed them by the original framers. But extending that liberty to the freedmen did very little to disturb the real-world hierarchy of race.

They might have done more. Land reform had been a part of the antislavery reform movement as far back as 1821. As Thaddeus Stevens put it, in the midst of Reconstruction, “Forty acres of land and a hut would be more valuable to [the freedmen] than the immediate right to vote. Unless we give them this we shall receive the censure of mankind and the curse of Heaven.” But they did not divide the slave plantations, nor give to the freedmen more than an “equal opportunity” to succeed on their own. In failing to ensure an equality that was real, the framers of Reconstruction earned, perhaps, mankind’s censure, and Heaven’s curse.

On the other hand, it might also be said that they provided the greatest measure of redress possible within the constraints of their day, that they crafted mandates broad enough to serve the visions of future generations, generations unencumbered, they hoped, by the political and epistemological obstacles of the mid-nineteenth century. Some of them, indeed, thought the equality they were providing was very real, and they had fought hard to secure it. Republican senator Thomas W. Tipton of Nebraska, for one, saw Reconstruction as the real vindication of the promise of freedom:

To grant a man his freedom from slavery and yet not secure to him the full and fair protection of law is only a mockery and insult. To allow him to amass property and then let others govern it by law, to allow him to seek liberty but deny him the power of preserving it by legislation, to allow him the claim to life but refuse him a jury of his peers, would be to rob him of the substance and cheat him with the shadow.

Stevens thought it was at least a noble start. Speaking of the Fourteenth Amendment, he said: “I will take all that I can get in the cause of humanity and leave it to be perfected by better men in better times. It may be that that time will not come while I am here to enjoy the glorious triumph; but that it will come is as certain as that there is a just God.” Of course, that “glorious triumph”—of perfect equality—did not come during Reconstruction, nor, as the effort wound to its conclusion, did it appear on the horizon. Stevens knew it: “But men in pursuit of justice must never despair.”