Congress and the First Civil Rights Era, 1861-1918

Jeffery A. Jenkins, Justin Peck

• Publisher: University of Chicago Press
• Year: 2021
• ISBN:
  9780226756530
• Topic: Politique et relations internationales
• Subtopic: Politique

Civil rights legislation figured prominently in the agenda of Congress during the Civil War and Reconstruction. But as Reconstruction came to an end and discrimination against African Americans in the South became commonplace, civil rights advocates in Congress increasingly shifted to policies desired by white constituents in the North who had grown tired of efforts to legislate equality. In this book, the first of a two-volume set, Jeffery A. Jenkins and Justin Peck explore the rise and fall of civil rights legislation in Congress from 1861 to 1918.The authors examine in detail how the Republican Party slowly withdrew its support for a meaningful civil rights agenda, as well as how Democrats and Republicans worked together to keep civil rights off the legislative agenda at various points. In doing so, Jenkins and Peck show how legal institutions can be used both to liberate and protect oppressed minorities and to assert the power of the white majority against those same minority groups.

CHAPTER ONE

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Introduction

Racial conflict is part of the bedrock of American politics. Although slavery is never explicitly mentioned in the Constitution itself, fights between those who opposed and supported it threatened to blow up the convention at which it was drafted. The framers (in)famously accommodated slaveholders’ interests by stipulating that each of the enslaved would count as “three-fifths” of a person in determining representation in the House and the Electoral College. The Constitution also gave states the authority to determine that slaves were considered property before the law, including a fugitive slave provision obligating the federal government to aid in the return of escaped slaves, and prohibited, until 1808, any efforts to ban the international slave trade.1 Slavery required policy intervention and state support even though the framers refused to record its name.2

From 1789 until the end of the 1850s, members of Congress protected slavery by carefully balancing free-state and slave-state preferences. After Abraham Lincoln’s election in 1860, however, disagreements about slavery’s potential expansion westward—which had reached fever pitch—caused the Union to fracture, and civil war followed. Once the Confederate army surrendered in 1865, elected officials at all levels of government faced the future with no plan for patching the country back together. The Republican Party ruled in Washington, DC, but save for the addition of the Thirteenth Amendment, the Constitution was unchanged. As a result, Republicans were governed by rules that did not acknowledge the outcome of the war. To make the Northern victory permanent, they needed to either amend the Constitution itself or work within prevailing conceptions of what the document allowed.

From the moment the war ended, the political and social status of African Americans consumed national attention. By 1865, after several years of internal struggle, Republicans agreed on abolition. But the substantive meaning of black freedom remained an open question. Also to be determined was how a Constitution that had protected slavery until 1865 could be altered to ensure the civil and political rights of former slaves. While the national debate over what freedom meant in postwar America played out in each of our primary political institutions and in the states, the rights and constitutional protections afforded to African Americans would be determined to a significant degree by Congress. Because the Constitution had for years made peace with human bondage, and because lawmakers were beholden to voters who themselves supported slavery, there was no guarantee that any legal changes would meaningfully incorporate and protect freedmen.

In this book we explore how Republicans in Congress, aided by the political activism of black citizens in the states, enacted laws to establish an inclusive, multiracial democracy in the United States. We also describe why their efforts could not survive a political onslaught by nineteenth-century white supremacists and their more “moderate” allies. More specifically, we explain how and why the “Grand Old Party” (GOP) created and enforced legal reforms extending freedom, citizenship, and voting rights to former slaves—and how former slaves, in turn, acted on those rights by voting, running for office, and demanding their fair share of government aid. But beginning in the 1870s, the GOP’s political weakness throughout the South, as well as the shifting political preferences of Northern voters, allowed the white majority in the former Confederacy to degrade and ignore these reforms in ways specifically designed to deprive African Americans of their rights. Our analysis provides an explicitly “Congress-centered” perspective on this transformation by exploring the Republican Party’s role in undermining the multiracial democracy it had helped to build.

We show that GOP infighting, a central feature of the party from its birth, was a major factor in its inability to sustain civil rights policies against a prolonged, multifront attack from white Democrats. Within the Republican Party, conflicts emerged over how much federal authority should be deployed to defend black civil rights and an inclusive democratic system. And through the years we analyze, factions representing these different perspectives vigorously competed for power and influence. The policies that Republicans passed when they controlled Congress, and the public response to these policies, bolstered the relative power of one of these factions. The GOP’s retrenchment on civil rights is therefore one result of a particular sequence: policy enactments preceded a clear intraparty consensus on what the Constitution allowed, precipitating a fight among Republicans over the scope of federal authority that, over time, diminished official support for black civil rights.

Democrats exacerbated this tension. Once they returned to power, their nearly universal opposition to civil rights bolstered the position of those Republicans who were skeptical about deploying federal power on behalf of freedmen. Working together, by the later decades of the nineteenth century, Democrats and more “moderate” Republicans used state power to undermine much of the policy enacted in the immediate aftermath of the Civil War. Northern white attitudes also shifted to oppose a meaningful federal defense of black civil rights. And while some Republicans still made sporadic efforts to preserve and protect black civil rights, almost all their attempts failed. By the turn of the twentieth century, race politics in the country had hit their nadir.3

Focusing on party politics, we argue that policy enactments are a consequence of, and a window into, evolving public attitudes about civil rights. Without scientific polls, any assessment of public opinion will of course be an approximation. Yet for much of the period we analyze, voter turnout was dramatically higher than it is today.4 And while the conditions promoting the “electoral connection” between representatives and their constituents were weaker in the late nineteenth and early twentieth centuries, they clearly were present.5 Members of Congress had to take seriously their obligation to represent the preferences of voters back home. With Republicans pushing the civil rights agenda during these decades, policy decisions reflected the judgments of individual lawmakers about what their constituents would accept.

The electoral connection thus proved to be a double-edged sword for advocates of civil rights. When Republicans controlled Congress, and when a majority of them believed their political fortunes were contingent on the support of black voters, they passed civil rights initiatives. As Union troop levels in the occupied South dropped after 1868, however, white elites in the former Confederate states orchestrated a systematic campaign of violence and political terrorism against black voters.6 The constant “drama” coming out of the South—often covered in lurid detail by partisan newspapers—amid a nationwide economic downturn ultimately turned the Northern white public against civil rights. As Northern opinion shifted, Republicans in Congress neglected and undermined those policies they had once advocated.7 And though federal authorities fought Southern reactionaries for a time, violence and intimidation were ultimately successful in dampening black political participation and culminated in the “redemption” of Southern state governments by white Democrats.

Taken together, conflict within the Republican Party regarding the use of federal power to protect the black minority and electoral trends driven by shifting white attitudes explain the rise and fall of what we call the “first civil rights era.” In the immediate aftermath of the war, the GOP served as a mechanism for advancing and defending black freedom. Yet the progressive disenfranchisement of black voters in the South, while the Northern public sought to refocus attention on economic issues that were central to their concerns, persuaded many congressional Republicans to withdraw their support for civil rights. As the electoral influence of black voters declined, the political power of those within the GOP who opposed expansive federal authority to protect black freedom grew. By the second decade of the twentieth century, the Republican Party had almost entirely abandoned its historic support for the protection and extension of black civil rights.

In the chapters to come, we provide a detailed analysis of what national lawmakers accomplished on freedom, citizenship, and civil rights for African Americans from the Civil War through World War I, what other options were possible, and how choices made immediately after the Civil War informed the decisions of elected leaders well into the twentieth century. Our analysis therefore highlights legislative paths not taken—“near misses” that could have significantly altered the course of political development in the postwar United States. By presenting the options available to lawmakers, we illustrate the role of choice in determining the direction of American political development in the decades after Confederate surrender. The Civil War radically expanded the range of choices available to lawmakers.8 To many it looked as if the future would be dramatically different from the past. In a speech given just before he was murdered, President Lincoln described the situation this way: “So new and unprecedented is [Reconstruction] that no exclusive and inflexible plan can safely be prescribed as to details and collaterals.”9 Focusing on congressional action during the first civil rights era highlights a central feature of American democracy: how the same Constitution can be used as a mechanism to liberate oppressed minorities and to assert the power of the white majority against those same minority groups.

While we take seriously the influence of agency, choice, and contingency, we also draw out general political patterns enabling the shift from an inclusive, multiracial democracy to an exclusive democracy run by and for whites. Coming out of the Civil War, the Republican majority was divided on issues related to Reconstruction. Some believed the war justified a revolutionary change in the balance of federal and state power expressly to advance black civil rights. Others sought a return to the antebellum status quo, minus slavery. A third group tried to find some middle ground between these positions. Factionalism of this kind, we will show, consistently determined the GOP’s willingness and ability to advance black civil rights. These conflicts were exacerbated by the durability of geographic representation that forced African Americans into a party that was regionally weak.10 Most black citizens lived in the South, but the GOP proved unable to secure a meaningful foothold there. Black rights were therefore contingent on support from external actors: Northern white lawmakers and voters. Tracking their attitudes toward civil rights policy is central to our analysis.

We also focus on Congress because it was the preeminent branch of the national government during the period in question and was formative in defining and enforcing civil rights protections.11 Of course the constitutional questions at stake ensured a role for the executive and the judiciary. Actors from each—especially presidents—will emerge from time to time in our analytic narrative. But during the first civil rights era they were most often reacting to decisions made by Congress. To understand the behavior of a president or the Supreme Court, then, we must first understand how and why Congress enacted the policies it did.

The last reason for our rigorous attention to Congress is that it allows us to explore the “reciprocal links connecting politics to policy, the relationship of ideas and interests, the impact of sequencing and . . . the sources of preferences when situated historically.”12 We thus pay close attention to legislative debate over proposals dealing with black civil rights. This is not because we believe that “ideas” trump partisanship or the desire for personal political advancement. Instead, we argue that congressional debate clarifies how lawmakers thought about the relation between civil rights and the Constitution from the Civil War through the second decade of the twentieth century. The arguments they made were published in newspapers and otherwise communicated to constituents. They both reflect and influence public opinion. When written into policy, these ideas shaped subsequent politics concerning civil rights.

Several prominent scholars have examined the development of black civil rights in the post–Civil War United States in great detail.13 Our goal in this book is to add to their work by offering a policy history of all meaningful legislative proposals dealing with black civil rights from 1861 to 1918.14 Before moving on to a more detailed substantive preview of the chapters to follow, we briefly describe the politics that preceded the Civil War to make it clear why the abolition of slavery and the extension of civil rights protections to African Americans proved such a monumental task. We also identify the partisan dynamics that gave rise to the Republican Party. The political tensions built into the party at the moment of its creation, as we demonstrate below, continued to manifest themselves through the later decades of the nineteenth century.

Slavery and the Rise of the Republican Party

Significant historical work has revealed that at least some of the framers recognized that slavery was at odds with the new nation’s founding principles.15 Regardless of their concerns, it quickly proved to be an immensely profitable enterprise. Roger Ransom shows that between ratification and 1860 “there was no prolonged period during which the value of slaves owned in the United States did not increase markedly.”16 While most South...