Reconstruction Under The Constitution

Reconstruction sounds like a neat “after the Civil War” chapter until you look at the Constitution and realize the country is trying to do something almost impossible: bring the South back into the Union while dismantling slavery’s political order, all without turning wartime federal power into a permanent blank check. Dr. Sean Beienberg joins us to map the constitutional minefield and explain why this short window produces outsized fights over federalism, civil liberties, and separation of powers.

We dig into how Reconstruction begins as military occupation and turns into a battle over readmission terms: What must Southern states do to return, and who gets to decide? We compare Lincoln’s push for quick reintegration “by the book” with Andrew Johnson’s pardons and under-enforcement that provoke Congress to take the wheel. From Lincoln’s veto of the Wade-Davis Bill and his insistence that ending slavery requires the Thirteenth Amendment, to Thaddeus Stevens trying to rebuild the South without giving Washington unlimited control over local policy, the conversation keeps coming back to one question: how do you use federal power for justice without breaking constitutional structure?

We also tackle one of the most striking legal moves of the era, Ex parte McCardle, where Congress strips federal court jurisdiction over certain habeas corpus challenges and the Supreme Court accepts it under Article III. Then we zoom out to the long political unwind of Reconstruction and the “Lost Cause” story that later reframes the Civil War, demonizes Reconstruction, and even helps explain when and why Confederate statues go up.

If this helped you see Reconstruction, the Constitution, and historical memory with clearer eyes, subscribe, share the episode with a friend, and leave us a review. What part of Reconstruction do you think Americans still misunderstand most?

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Transcript

Welcome And Big Questions

SPEAKER_00 0:46

Welcome back to Civicston here. Dr. Sean Beyenberg is back with us. And today we're talking about Reconstruction and the Constitution. So Lincoln, the veto of Wade Davis, Thaddeus Stevens speeches on Reconstruction. So, Dr. Beidenberg, what can you tell us about Reconstruction and the Constitution?

Why Reconstruction Tests The Constitution

SPEAKER_01 1:08

Reconstruction obviously is one of the most, in some sense, constitutionally challenging moments for the American Republic. Obviously, the political consequences are massive. They're trying to figure out how to make the South sort of a functioning part of the Union again and dismantle, dismantle its sort of regime of white supremacy. But that also, that's an ambitious undertaking that in some sense challenges many of the, you know, many of the constitutional assumptions that folks had were quite committed to, and again, often some often for good reason, right? So Reconstruction is a massive federal undertaking among people who are reflexively uneasy with massive federal power under the Constitution. It has implications for civil liberties. It has implications for separation of powers, right? Is Congress or the president supposed to be the primary operator of domestic policy? Is Reconstruction even about domestic or foreign policy? Like that's its own sort of debate that they'll come to. So ultimately, Reconstruction really is a lot of like a very relatively short moment in American history that like when I'm assigning my Supreme Court cases, there's a lot of them that come just from this little window because it does open up lots of lots of really important debates because it's at a really substantively important time. So that's the sort of the core I would say of why it's important constitutionally. And then just politically, politically, I guess this kind of gets to what we talk about later, but how we remember reconstruction makes a big deal for how we think of politics today, too.

SPEAKER_00 2:40

So what's happening during this time of reconstruction? So reconstruction is kind of different phases.

Military Occupation And Readmission Terms

Lincoln And Johnson Split The GOP

Wade Davis Veto And Federalism

Thaddeus Stevens And Limited Federal Power

Ex Parte McCardle And Court Shutdown

SPEAKER_01 2:48

It started out, you know, begins in different parts of the country in different sort of turn, you know, depending on what what you actually want to trigger is like when does reconstruction kind of start? But basically, reconstruction is at the end of the Civil War, the Union military is in control of the southern states. And so initially, it looks like kind of military occupation, uh, effectively. And the debate is sort of what do we do to bring these states back into the Union? On what terms will we insist they come back? You know, are we going to insist on end of slavery? Are we going to insist on equal suffrage? Are we going to insist like and so you know, and those goalposts will change a little bit as reconstruction happens? And, you know, this is one where there's a lot of disagreement, even internally among the Republicans. You know, Lincoln's second inaugural address anticip or you know, reflects uh his vision, which is that he wants to as quickly as possible reintegrate the South as part of the Union without vindictiveness. But that also doesn't mean to simply let the South get away with whatever they want to, which is why, in some senses, Johnson, President Andrew Johnson, is not unfaithful. I mean, cautious here. Parts of Johnson's desire to basically say we don't need to be punitive to the South, needlessly punitive to the South, that does reflect Lincoln's view. Andrew Johnson obviously turns the other way, insofar as like he's basically and ends up as an enabler of them by the end of it, right? So, you know, that I don't think Lincoln was quite on board with. Conversely, then, you know, Johnson, Johnson's, I want to say almost under enforcement of Reconstruction in some places forces Congress to possibly overreact. I don't, I'm not, I don't necessarily think so, but like there's a concern that basically Congress is reacting in a way that might be sort of overshooting it. And then you know, political controversy tends to be where it escalates. So I mean, I think it's pretty clear that, for example, Congress making it so that Johnson couldn't fire cabinet members without Congress's permission is clear congressional overreach, right? Even if you're very sympathetic to Reconstruction. So that's just an example where Congress is overreaching in reaction to Johnson, Johnson sort of basically trying to make the Civil War almost almost meaningless, except for the formal elimination of slavery. So if we yeah, so Reconstruction again is a series of of these constitutional debates, and they take different, different, different shapes. So we alluded to it briefly before in an earlier podcast, but uh, you know, as the Civil War is ending, and by this point it looks like the North is probably gonna win, Lincoln vetoes the Wade Davis bill, which is an effort by Congress to, by statute, prohibit slavery in the South. And Lincoln says we can't do that. We we have no congressional authority to terminate slavery by statute. As he says in his uh veto or his proclamation, I'm unprepared to declare a constitutional competency in Congress to abolish slavery in the states. That's why he says we should do a 13th Amendment. But you know, that's a that's a federalism uh debate. And he says he's gonna veto this thing, and there's this really fun note in the diary of uh John Hay, who later becomes Secretary of the State, I think for Theodore Roosevelt. But back then, he's just like Lincoln's like personal secretary, which is kind of a fun trajectory to think of. He's basically just like the kid hanging around Lincoln writing notes and eventually secretary of state. But he recounts this, he recounts in his diary a bunch of Republican senators coming up and saying, Lincoln, why are you why are you vetoing this thing? Like we're gonna stick it to the South. You did it with the Emancipation Proclamation, you're doing it with this stuff. And Lincoln says basically when the war is over, we go back to the old powers. We have to, you know, yeah, he's not very explicit about because the documents, it's a little short exchange. But you know, you can infer he's thinking, like, we got to bring habeas corpus back, we got to bring separation of powers, we gotta bring federalism back, right? Commander in chief, president isn't commander-in-chief anymore, so presidential powers flow back, right? And so, you know, that's an early moment where Lincoln says, we're still gonna do this by the book of the Constitution. We're not going to torture federalism and separation of powers out over this. So obviously, Lincoln is assassinated and Johnson takes over. And Johnson interacting with, we'll talk about the 14th Amendment, but Johnson basically pardons pretty much all the Confederates and undoes a chunk of the 14th Amendment that's supposed to keep them from political power. And that is clearly well beyond what Lincoln is wanting to do. Lincoln, you know, wants to make it so that you swear your oaths, you but Johnson doesn't, Johnson clearly sort of under undercuts that. So then the Congress basically takes over and it moves to, as folks may remember from your high school history classes, so-called congressional reconstruction. But this causes a lot of interesting debates. And this is why this Thaddeus Stevens' speech on Reconstruction, I think, is is worth is worth looking at. So Stevens, I think, is it's no one will deny he is among the leaders of the most radical of the Republicans. Like he is not some like moderate squish who basically is like, yeah, let's be friends with the South. But Stevens is also troubled by the idea of making the federal government have power to set like local domestic policy, right? He doesn't want the federal government, he cares about his 10th Amendment. So he's trying to figure out, he and others, how do we rebuild the South with federal power without empowering the federal government to do anything else in general that it wants? And so they have these debates for a few years during uh Reconstruction, and they come up with all these theories. And you know, Stevens explicitly says it would be deplorable, rank and deplorable usurpation to have the federal government even set voting rights, which is quite striking. He'll do the 15th Amendment later and say this is an exception, but what you know, what will let us modify the domestic institutions of a state? So I mean he seems to think that voting rights can be pushed through through the 13th Amendment originally, but generally speaking, again, he's like, how do we how do we justify this? And so they come up with these theories. They say, is the South in the grasp of war? Is this basically captured territory? Did the Southern states secede from did the Southern states commit suicide? And so therefore they're not protected under federalism. And this is a place where whether you think secession is constitutional or not makes a difference. If you think secession is constitutional, then you know the South isn't necessarily violating it by believing, they're violating it by shooting. So Fort Sumter sort of opens that up. So but they're having these debates precisely because they want to say what is basically a principle that we can create that will let us govern the South directly without empowering to basically govern the North and the West directly. And so Congress has different theories, but for our purposes, they all collapse into the same, which is basically the states are now territories. Congress can do with them as they see fit, provided they don't violate the Bill of Rights. But even that, they're willing to uh crack down on. Are you familiar with the Supreme Court case ex parte McCardell, where they do the jurisdiction stripping? Yeah.

SPEAKER_00 10:07

No.

Why Reconstruction Winds Down

The Lost Cause And Statue Politics

SPEAKER_01 10:08

So eventually I'll I'll simplify it a little bit here because it gets into the some real tedious comma weeds. But Congress basically passes a law that says federal courts cannot hear habeas corpus uh petitions that are basically uh challenging parts of reconstruction, uh which is to say you have no access to federal courts that are protesting reconstruction, which is, I think, quite striking and quite unsettling for civil liberties kinds of claims. And the Supreme Court unanimously says, yep, this is cool, because Article III explicitly says Congress can make exceptions as to what a jurisdiction the federal courts will have, except for if you say, and they just say basically you're not hearing cases revolving involving uh reconstruction. And the Supreme Court says, yep, that's consistent with Article III. So again, I'm not saying that's wrong, but like that is a quite striking constitutional thing that basically the court system has closed down for a major chunk of policy. Obviously, there's elements of voting rights enforcement, which we'll talk about when we look at the 13th and 15th Amendments. So I'm gonna hold on that for one of our future iterations. So the what ends up basically, so the conventional narrative is that Reconstruction is sort of terminated in 1877 as a result of a corrupt bargain between Rutherford Hayes and basically the Southern handlers. I don't think that's quite fair to Hayes. I'm not saying Hayes is bathed in glory here, but voters had tired of, I mean, the Reconstruction is military occupation of the South. And voters had tired, like, you know, I again I don't want to comment on the merits of like the current Iranian thing, but people are already getting tired, like 10 days in, right? So you can imagine 15 years in, voters like, I don't want to pay taxes for this, I don't want to deal with this, I want to talk about something else. And so there is growing disillusionment or just indifference to focusing on this. And so, you know, Republicans have been signaling that like we're like almost uh we're moving on, we've accomplished the coordinate, slavery's over. And so, you know, the I guess I would say even if Hayes didn't have to make any deal like that, reconstruction was likely sort of on its way out because of that's what the political demand from from uh northern northern voters have been. There's just like there's not as infinite the complete and total collapse of it, maybe not. And also it's worth noting that in 1877, like Reconstruction actually looks like it's is kind of working. And there's not there's reason to think that you know Hay Hayes is actually you know reserving, we'll come back if we need to, because he's confident that northern voters will back that. And then it turns out they don't. So the 1880s really it's not 1877 that like where reconstruction collapses and suddenly there's this like immediate wave of like racial recapture of the South. It's basically in the mid to late 1880s. There's quite a lag. So again, not defending Hayes and this on the grounds that like this is the best thing, but this wasn't like a sort of cloak and dagger thing where nobody thought this was gonna happen. Like people have been tired of Reconstruction for a while. The Republicans get thoroughly thrashed in the 1874 elections, basically on civil rights issues. So so then how do we remember Reconstruction? Have I done my lost cause tirade yet in one of these? I can't remember. Nope, but let's hear it. So Reconstruction. Yeah, sorry, this this is a tirade here, and hopefully it'll entertain you folks. If not, Liz can delete it. I'm not deleting this. So so the the idea there's this narrative that gets built called the lost cause, which is a question basically of historical memory. How do we remember Reconstruction? And also how do we remember what the Civil War is about? And this is one of my sort of bokeyman and tirades because a narrative gets built sort of as Reconstruction is waning, that one, the Civil War is about states' rights instead of slavery, which is I've beaten to I know I've beaten that part to death in numerous earlier iterations. But also the parallel of that is Reconstruction is a bunch of evil authoritarian Republicans collaborating with incompetent, corrupt local governments. And wouldn't it all be better if the original that Southern Democratic coalition ran the South again? So there's sort of two parts of it. One is demonizing Reconstruction is a bunch of lunatics, quasi-authoritarians. Daddy Stevens is like a proto-fascist or whatever, and that the Civil War was really about a federal a good-natured federalism debate, instead of like, no, it was about slavery. The Northerners were not anti-federalism, and then conversely, Reconstruction was, again, constitutional overreach in some cases, yes, but often quite muted and dealing with, you know, Andrew Johnson basically undermining it. So this narrative basically happens for like 80 years, effectively, that Reconstruction is a complete failure. It's just a bunch of authoritarians and fanatics and lunatics in the north and historians beginning in the 1960s, they have again the crazy idea that you should go and look at primary sources, and the lost cause largely collapses, except for on pockets of the internet. So, so yeah, but how Reconstruction is remembered, and this lost cause here moment is also when Southerners start putting up statues. They don't put up statues immediately after the Civil War. And you know, I as I like pointing out, do you know who was ferociously opposed to putting statues of Confederates up? Robert E. Lee himself, right? So I've often wondered why folks don't like more to co-op because Lee basically has a like, no, we lost. We do not remember this fondly. We don't demonize everybody as a monster, but like we don't celebrate this. Uh and it's always kind of baffled me that there hasn't been more of a like, hey, let's co-opt Robert E. Lee and point him back at the lost causers.

SPEAKER_00 16:12

But it's always interesting, you know, when that whole debate was happening about taking down commemorative, you know, Confederate statues, of always asking, when was that statue put up?

SPEAKER_01 16:25

Right. It's 19, they're almost almost like 1905 or 1950. They're not like 1880 when the boys, or you know, 1867 when the boys came home, kind of thing. 1865.

SPEAKER_00 16:36

Yes. There's, and I think that that's the hardest thing for me with like the internet culture and this like quick answers. It's it's like there is more to it. When you start asking questions of like, when was this put up? Why was this put up? Who put it up? Like, once you start digging in there, I think there's so much more. And this is the first time I've heard about Robert E. Lee being like, we do not need to do this. But that is a really interesting thing, too, because it it wasn't listened to, and he has been kind of venerated and used to put up statues. Yeah. So American history is just yeah.

Next Amendments And Closing Thanks

SPEAKER_01 17:18

When he when he took over the presidency of what was then Washington University, they rename it Washington Elite. He was very much, you know, like, no, we are part of the union. We do not celebrate this. This is over. Move on. But his so yeah, he he is an odd champion for for lost causers to point to. I'll just say that.

SPEAKER_00 17:41

It is really interesting. And Dr. Beyenberg, thank you. I know in you know, our next episode, we're gonna talk about the 13th and 15th amendment because we did not talk about amendments in this, and then we're actually gonna do a two parter on the 14th amendment. So the next three episodes after this are really gonna start to dig into that. So, Dr. Beyenberg, thank you so much.

unknown 18:00

Yep.