The 150th Anniversary of the American Civil War: Our Legacy Considered

One hundred and fifty years ago, a conflict began that would redefine American citizenship and reshape the nation.  At 4:30 AM, April 12, 1861, Confederate forces began their bombardment of Fort Sumter, a federal coastal fortification in Charleston harbor, inaugurating four years of bloody civil war.   The Sesquicentennial of the American Civil War is an occasion to consider the legacy of that great conflict.  This legacy is our inheritance, and despite many indelible features, we continue to negotiate the resolution of that conflict.

The Civil War was fought over slavery, but not always on behalf of slaves.   This paradox is the source of confusion regarding the cause of the war.   Gradual westward expansion threatened to tip the balance of power and control of the federal government either toward the South or the North, and a series of compromises were constructed to alleviate that tension from 1820 until the brink of war.   The centerpiece of Republican Party platform in 1856 and 1860 was not emancipation, but “non-extension,” a policy that would prohibit slavery in the territories and halt the introduction of new slave states into the union.   Non-extensionism was not about abolishing slavery, but keeping it where it was.

The Emancipation Proclamation, the executive order issued January 1, 1863 freeing slaves held in rebel states, transformed the war cause from non-extensionism to abolitionism.   Military necessity prompted Lincoln to issue the edict, but the moral reframing changed the course of the war and its eventual settlement.   Lincoln called for a “new birth of freedom,” implicitly criticizing the contradiction between the commitment to liberty embodied in the Declaration of Independence and the Constitution’s anchoring in racial inequality.   The union could no longer be preserved as it had previously existed, but had to be reconstructed on a new basis.  The trio of Amendments proposed and ratified shortly after the war constituted that new basis.

The Reconstruction Amendments did more than simply revise the original Constitution, they fundamentally transformed it.   Not since the original Constitution was ratified had so many amendments been proposed and ratified in succession.   They redefined the phrase “We the People” by drawing freed slaves into the definition of American citizenship and reordered the relationship between the states and the federal government.  The Constitution of 1870 was one of national primacy, derivative state citizenship and a greatly expanded role for the federal government and federal courts in the protection of citizenship and personhood from state interference.    But most importantly, they did more than protect freedman from discrimination or state imposed disabilities; they were an affirmative vision of a new American political community.

American slavery and racial caste were not separate systems, but mutually conceived and part of a common architecture.   The Radical Republicans sought not merely to free slaves and make citizens of them, but to remake society and effect a social, not simply legal or political, transformation.   This was to be accomplished through a program that secured citizenship and empowered freedmen with land, education, and the right to vote.   They perceived a brief but historic moment to rewrite the rules of the game.   To that end, they desired a Constitutional edifice that might insulate this effort from subsequent reversal by the Courts or the Congress upon the readmission of southern states.   Their success was only partial and temporary.

The panic of 1873 shifted public opinion away from Reconstruction and the Tilden-Hayes Compromise formally concluded it with the withdrawal of federal troops.  Over the next thirty years, the Supreme Court systematically overturned much of this work in a trio of decisions narrowly interpreting the Reconstruction Amendments: The Slaughterhouse Cases (1873), The Civil Rights Cases (1883), and Plessy v. Ferguson (1896).  Only one of those cases has since been overturned.   The Civil Rights Movement is largely responsible for restoring much of the Reconstruction framers’ vision, but the other two cases remain part of our Constitutional jurisprudence.  In many ways, the resolution of the Civil War, including the meaning and scope of the Reconstruction Amendments, remains deeply contested to this day.  Many of our contemporary civil rights struggles are the legacy of battles won and lost in the post-Reconstruction era.

Recently, state legislators have been calling for a repeal of the 14^th Amendment’s birthright citizenship clause, a provision that was enacted as a response to the pernicious Dred Scott decision and guaranteed freed slaves and descendents of slaves their citizenship rights.  The same principles are again at stake.   The dangers that confronted freed or fugitive slaves are the same that many immigrants face.    It should accord little surprise that a leading proponent of repeal is also the author of Arizona’s infamous anti-immigrant SB 1070.

Abolitionists lamented the consequences of emancipation premised, initially, on expedience, rather than as “an act of general repentance,” as William Lloyd Garrison told a crowd on the Fourth of July, 1876, at a centennial address.   The relationship between the abolitionist movement and the war cause is instructive.  The Civil Rights Movement of the 1950s and 60s is appropriately regarded as a paradigmatic example and inspiration for coalition building and reform.   The abolitionist movement is another, less familiar, but no less successful model.   It is a movement that ultimately galvanized a nation to the immorality of slavery, and profoundly influenced the terms of the debate over the war and its purpose.

Abolitionists made agitation their method and medium of change.   Through agitation they pursued three goals:  1) highlight the moral injustice of slavery, 2) brand slaveholders as corrupt and tyrannical, and 3) denounce institutions complicit with slavery, including the Constitution.   They advanced their cause in newspapers and tracts, speeches, schoolhouse discussions, neighborhood prayer meetings, conventions, and by organizing anti-slavery constituencies.   Each new offense, from the gag rule to the Fugitive Slave Law of 1850 to the Dred Scott decision, gave abolitionists fresh ammunition and a boundless set of issues from which to stake and reiterate their arguments.

After thirty years of agitation, abolitionism blossomed from a derided, radical faction into a social movement that would command the attention and respect of the nation.  Eventually, the abolitionist movement had grown large enough to attract the interest of political parties who might court their constituents.   Although some of its leaders believed they should make their voice heard in electoral campaigns, Garrison urged his readers to reject the seductive appeal of conventional party politics.   Admired for their principled consistency and authentic moral vision, Garrison feared a dilution of principle and purpose in the engine of politics.  In his view, the abolitionist movement had to work on constituents rather than candidates.   The moral education of the citizenry and the cultivation of antislavery sentiment was their most important task.  Abolitionists excoriated the spirit of compromise with the evil of slavery that pervaded antebellum politics.   They rebuffed the Machiavellian cut, the disjuncture between ethics and practical politics.  Political transformation, Garrison believed, could only come about by a “change in the moral vision of the people.”   The people first had to accept the immorality of slavery, only then could they be counted upon in politics.

The abolitionists demonstrated this commitment by cautiously distancing themselves from the emergent Republican Party.  Rather than make all abolitionists Republicans, they sought to make all Republicans abolitionists.   They did not hesitate to criticize Republicans when they misstepped or fell short of abolitionist ideals.   President Lincoln drew abolitionist scorn when he briefly floated a re-colonization scheme for captured slaves in 1862 or proposed a gradual and compensated emancipation plan that would conclude by 1900.   Abolitionists planned to hold Lincoln accountable until the President set himself on the path of immediate and unconditional emancipation.

These lessons are applicable today.   Too much of our politics is framed by political realism and a constrained sense of possibility rather than moral imperatives and ethical vision.   The debates over the health care law are framed more often by the costs of the bill than the moral and ethical necessity of providing all citizens health insurance.   We must morally educate our fellow citizens on the harms of concentrated poverty, the pernicious effects of the system of mass incarceration, the re-segregation of our public schools, the degradation of our environment, and the indignities of our current immigration enforcement apparatus.   We cannot commemorate the civil war without appreciating the profound, but partially frustrated, transformation it wrought, and the Reconstruction Constitution’s vital purpose to realize a new birth of freedom founded on the principles of equal citizenship and a beloved community.