"I know no method to secure the repeal of bad . . . laws so effective as their stringent execution"

I've been reading H.W. Brands's excellent biography of Ulysses S. Grant, The Man Who Saved the Union: Ulysses Grant in War and Peace, and ran across a brief description of Grant's first inaugural address.  I've long admired Grant, and his first address contains commonsense wisdom and honesty,  as well as advice that is so clearly relevant to the current situation that it needs no explication:

On all leading questions agitating the public mind I will always express my views to Congress and urge them according to my judgment, and when I think it advisable will exercise the constitutional privilege of interposing a veto to defeat measures which I oppose; but all laws will be faithfully executed, whether they meet my approval or not.  

I shall on all subjects have a policy to recommend, but none to enforce against the will of the people. Laws are to govern all alike - those opposed as well as those who favor them. I know no method to secure the repeal of bad or obnoxious laws so effective as their stringent execution.

(Emphasis added.)

About the illustration, entitled The Great November Contest. Patriotism: versus Bummerism (1868):

The strongly racist character of the Democratic presidential campaign of 1868 is displayed full-blown in this elaborate attack on Reconstruction and Republican support of Negro rights. Horses with the heads of Democratic candidate Horatio Seymour and running mate Francis P. Blair, Jr., pull a fine, ornate carriage in a race with a rude wagon drawn by asses with the heads of Republican candidates Ulysses S. Grant and Schuyler Colfax. The Democratic carriage pulls ahead in the race, heading toward a cheering crowd and a series of floral arches held by young maidens. The U.S. Capitol is visible beyond. In the carriage are four allegorical figures: Liberty, holding the Constitution and a banner which reads "Our Glorious Union D̀istinct, like the Billows, One, Like the Sea' This is a White Man's Government!"; Navigation, holding a miniature ship; Agriculture, holding sheaves of wheat and a scythe; and Labor, represented by a bearded man with a hammer and flywheel. In contrast to the Democratic vehicle, the Republican wagon has stalled before a pile of rocks and a cemetery strewn with bones representing "100,000,000 White Lives, the Price of Nigger Freedom!" Its wheels are blocked by a large stone "Killing Taxation" and a skeleton. Other stones represent "Ruined Commerce," "$30,000,000 stolen from the Treasury," and "Negro Supremacy." In the wagon are the grim reaper, Pennsylvania representative and abolitionist Thaddeus Stevens, an unidentified man, a black woman, and an idle black man. Stevens: "Colfax pulls like the d----l but old tangleleg [i.e., Grant] aint worth a d----n! Push at the tailboard, Ben!" Massachusetts representative and former Civil War general Benjamin F. Butler, pushing the wagon from the rear, replies, "I am pushing, Thad! but we are stuck. Seymour is a mile ahead now." Silver spoons protrude from Butler's pocket. (For the origins of Butler's nickname "Silver Spoons," see "The Radical Party on a Heavy Grade," no. 1868-14.) The black woman reassures Stevens, "Don't worry you'sef, honey, or you'll peg out afore we get de paeket for Seymour's in de White House and we's good for Salt River [colloquialism for political disaster]." The black man asks, "War's dis wagon gwine wid dis member ob Congress. I'd jes like to know?" The unidentified man remarks, "The Democracy would not take me so I thought I'd come back & stick by you Uncle Thad, and we'll all go to H-ll together!" Death announces, "My friends 1,000,000 slaughtered soldiers block the wheels--you fooled them, and they now impede your progress!" At bottom right a group of bummers, a term referring to party hangers-on, carpetbaggers, and other disreputable characters, stand in line to buy tickets to Salt River. At left New York "Tribune" editor Horace Greeley invites abolitionist preacher Henry Ward Beecher to play the thimblerig. Nearby a black couple in rags express their desire to return to their former master. At top right, next to the U.S. Capitol, a group of black youths in striped outfits dance and tumble about. In the lower right margin are prices and information regarding ordering copies of the print by mail. "Price 25 cents mailed. 5 for $1.00. 60 for $10.00, 100 for $16.00. Nothing sent C.O.D. Express charges paid by Parties ordering. Address: Bromley & Co. Box 4265. New York City.

By One Vote

I am reading Michael F. Holt's book on the 1876 election, By One Vote: The Disputed Presidential Election of 1876. This is a period I know less about, and Prof. Holt is proving to be a superb guide. He provides an excellent overview of the tangled issues of corruption, high taxes, excessive spending, depression and monetary policy that combined to strangle Reconstruction in the mid-1870s.

In the opening chapters, Prof. Holt sets the stage by reviewing the "political revolt against [President Ulysses] Grant known as the 'Liberal Republican movement,'" reminding us that even pre-War radical Charles Sumner could be counted among its members.

Analyzing the 1872 election returns, Prof. Holt argues that Grant's landslide victory was founded on quicksand. First, "[a]lmost all of the increase in Grant's national [vote] total between 1868 and 1872 . . . came from former slave states, and most of those new Republican votes undoubtedly came from newly enfranchised freedmen." If those votes were lost, the Republican in the next election would no longer be assured a comfortable margin.

Second, and even more important in Prof. Holt's view, was the fact that Grant had benefited from a "marked decline in normal levels of Democratic voter turnout in most states." In 1872, the "Democrats had grudgingly endorsed Horace Greeley, the surprising choice of the Liberal Republican[s]." Democratic voters stayed away from the polls in droves rather than vote for the arch-Whig who had denounced them "as lawless, shiftless, drunken sots" for decades.

At the same time, Greeley's high-profile history hardly made him the idea Liberal Republican candidate when it came to issues such as tariff reduction and civil service reform. His strongest recommendation to them came from his endorsement of the "Liberals' demand for an end to federal intervention in the South, and a restoration of full political rights to those former Confederates still disqualified from holding office."

And yet even this stance proved a double-edged sword, for it left Greeley "vulnerable to vicious lampooning by Thomas Nast, the widely read political cartoonist for Harper's Weekly who had recently played a central role in toppling New York City's hugely corrupt Boss William M. Tweed from power."

Two of Nast's lampoons, both of which are reproduced in Prof. Holt's book, appear in this post. The first, entitled It Is Only a Truce to Regain Power (Playing Possum) depicts Greeley and Sumner (at the far right) "urging a freedman to reach across the bodies of murdered blacks to shake hands with two stock Democratic characters: a southern member of the Ku Klux Klan and an apelike Irish thug of the type who murdered blacks during the New York City draft riots of 1863."

The second, entitled Let Us Clasp Hands over the Bloody Chasm, "mocks Greeley's call for northerners and southerners to forget their sectional animosities," showing him "reaching in vain across the graveyard of Union prisoners at the notorious Andersonville prison camp."

The Reconstruction Congress

Long-time readers will know that I am a big fan of the late David P. Currie, a professor at the University of Chicago Law School who authored a series of books on The Constitution in Congress. He also produced two law review articles that should be of particular interest to students of the Civil War: The Civil War Congress and Through the Looking-Glass: The Confederate Constitution in Congress, 1861-1865<.

Well, I'm excited to discover that the University of Chicago Law Review posthumously published one last article by Prof. Currie that brings the series through Reconstruction: The Reconstruction Congress.

About the illustration:

A puzzling caricature, probably dealing with Reconstruction under Andrew Johnson's administration. The work is quite crudely drawn. An acrobat, with mustache and sideburns and wearing a jester's cap, holds in each hand a mask, one grinning and one frowning. His legs stretch from the head of Pennsylvania congressman Thaddeus Stevens, who holds a paper labeled "Committee of 15" and is seated on a black man, who crawls on all fours, to the head of an unidentified man (probably Johnson) who holds the U.S. Constitution. The latter's back is turned to the viewer and several geese, some alive and some dead, appear at his feet. Stevens, an abolitionist, was one of the most prominent members of the Joint Committee on Reconstruction, composed of fifteen members of Congress. The fool remarks, "As yet, I have found no difficulty in standing upon my own platform."

The Colfax Massacre 2

At NRO's Bench Memos, Ed Whelan delivers a positive review of Charles Lane’s The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction.

The book is already on the list.

The Colfax Massacre

Charles Lane's new book, The Day Freedom Died: The Colfax Massacre, the Supreme Court and the Betrayal of Reconstruction, is at the top of my "to get" list. I mention this because Mr. Lane is currently guest blogging at the Volokh Conspiracy. Professor Volokh's post introducing Mr. Lane is here. Mr. Lane's posts to date are here and here.

Those of you who are interested in the Reconstruction period should take a look.

The Right to Bear Arms in Reconstruction

One of the more interesting briefs filed in the Heller case – the case pending in the Supreme Court concerning whether there is an individual right to bear arms – is one filed by the the Institute for Justice.

The brief is somewhat off the beaten track, because it does not concern the original meaning or understanding of the Second Amendment. Instead, it focuses on the understanding of the Second Amendment held by the members of the 39th Congress shortly after the end of the Civil War. As such, it should be of significant interest to students of the Civil War and particularly Reconstruction.

I believe that the better argument is that the original Second Amendment was intended and generally understood to convey an individual right. But whatever one's views on that question, the evidence is overwhelming that members of the 39th Congress understood the Second Amendment as doing so.

What the brief documents is the powerful evidence demonstrating that that Congress was irate that southern states and communities were disarming freedmen and Republican sympathizers, leaving them to the tender mercies of gangs of murderous thugs. Rightly or wrongly, Congressional Republicans believed that the Second Amendment embodied an individual right to personal security and regarded these actions of southern states as clear violations of this right. Reconstruction era Republicans did not view the Second Amendment as tied to membership in state militias -- to the contrary, state authorities and “militias” were the problem. It was the need for freedmen and southern Republican sympathizers to protect themselves, their homes and their families against state and state militia violence that was the concern.

As the brief explains, the Republicans responded by enacting legislation and by proposing a constitutional amendment. Both the Freedmen’s Bureau Act of 1866 and the Civil Rights Act of 1866 contained provisions that were plainly premised on the belief that the freedmen were being deprived of their constitutional right to bear arms, and were designed to remedy that unconstitutional outrage as Congress saw it.

The belief that the southern states were violating the Second Amendment likewise contributed to the core of the Privileges or Immunities Clause of the Fourteenth Amendment, proposed by the same 39th Congress later in 1866. Among other things, members of Congress made clear during debate that that Section 1 of the Amendment was designed to insure that the Second Amendment – understood as the right of individuals to possess and use firearms for the protection of themselves, their homes and their families – was applicable against the states.

The brief falls down however, when it comes to explaining how the Reconstruction era understanding of the right to bear arms affects, or should affect, our interpretation of the Second Amendment itself. After all, as the brief concedes, what applies to the District is the Second Amendment itself, not the Fourteenth.

The brief seems to argue that the understanding of the right to bear arms that underlies the Fourteenth Amendment should somehow relate back to the meaning of the Second Amendment. This is, in effect, Professor Amar’s “doctrinal feedback effect” theory, which I discussed (and expressed confusion about) here, here and here.

The brief’s discussion of the issue strikes me as evasive at best. Here is the core of the argument:

The amendments to [the Constitution] are, of course, part of the essential intrinsic context of such a document. The Constitution following an amendment is, in many ways, a substantially different document than it was just prior to amendment, and the internal context even for provisions not expressly altered by the amendment nonetheless changes, and changes the interpretation of such provisions. Cf. United States v. La Franca, 282 U.S. 568, 576 (1931) (Statutes after amendment “are to be read, as to all subsequent occurrences, as if they had originally been in the amended form”). And insofar as an amendment was made with reference to earlier provisions, the amendment will control over such earlier provisions . . ..

The passage sounds very learned and sophisticated; the citations (I have omitted one) render it imposing. But when you cut through it, I’m not sure it says anything. If you understand it, by all means, tell me!

I readily admit that, if you assume that the Second Amendment did not originally convey an individual right of personal security, the alternative is awkward and unsatisfying. It is downright weird to posit that the Second Amendment itself grants no individual right against the federal government (including the District), but that the Second Amendment, as incorporated into the Fourteenth, does grant an individual right against the States. However, until someone points me to a comprehensible theory supporting the “doctrinal feedback effect," that is what I’m left with.

40 Acres and A Mule

Via Metafilter, this looks interesting, although I haven't read it yet: The Righteous and Reasonable Ambition to Become a Landholder: What Would Have Happened if Former Slaves Had Received Land After the Civil War?

Here's the intro:

Although over 140 years have passed since slaves were emancipated in the United States, African-Americans continue to lag behind the general population in terms of earnings and wealth. Both Reconstruction era policy makers and modern scholars have argued that racial inequality could have been reduced or eliminated if plans to allocate each freed slave family “forty acres and a mule” had been implemented following the Civil War. In this paper, I develop an empirical strategy that exploits a plausibly exogenous variation in policies of the Cherokee Nation and the southern United States to identify the impact of free land on the economic outcomes of former slaves. The Cherokee Nation, located in what is now the northeastern corner of Oklahoma, permitted the enslavement of people of African descent. After joining the Confederacy in 1861, the Cherokee Nation was forced during post-war negotiations to allow its former slaves to claim and improve any unused land in the Nation’s public domain. To examine this unique population of former slaves, I have digitized the entirety of the 1860 Cherokee Nation Slave Schedules and a 60 percent sample of the 1880 Cherokee Census. I find the racial gap in land ownership, farm size, and investment in long-term capital projects is smaller in the Cherokee Nation than in the southern United States. The advantages Cherokee freedmen experience in these areas translate into smaller racial wealth and income gaps in the Cherokee Nation than in the South. Additionally, the Cherokee freedmen had higher absolute levels of wealth and higher levels of income than southern freedmen. These results together suggest that access to free land had a considerable and positive benefit on former slaves.

At Marginal Revolution, Tyler Cowen comments:

The abstract is vague on magnitudes, for more detail see pp.29-30, for instance:

The livestock calculations find that the difference in the wealth gaps was substantial, and ranged from 46% to 75%. For crop income measures, the difference in the gap was smaller, but still substantial. My estimates place it between 20 to 56%.

Loyalty and Loss: But Why?

I've finished Margaret M. Storey's Loyalty and Loss: Alabama's Unionists in the Civil War and Reconstruction (Baton Rouge: Louisiana State University Press 2004), and you can color me disappointed.

In fairness to the good professor, it may just be that she was just not interested in the questions I was hoping she'd explore, or perhaps there are just no good answers to those questions. Putting aside the numbers issue (about which I griped about recently), there was little discussion of why some people, or families, or even areas, were unionist, while others were not. There was some scholarly patter about family and kinship and community ties, but that doesn't explain why this family, or that community was unionist, while the family or community next door was not.

She did a reasonably good job of conveying the tribulations of unionists, both during and after the War, but I found the narrative less compelling than, for example, that in Jonathan Dean Sarris's A Separate Civil War. In the latter book, I got a much better feel for the progression of resentment and violence over the years. Professor Storey writes perfectly well; her largely non-chronological treatment just didn't grab me.

On the plus side, Professor Storey related some surprising episodes of slaveholding unionists confiding in and working with their own slaves. She also did a good job treating the period of Presidential Reconstruction, capturing the bitter disappointment that unionists felt as they realized that the federal government was sacrificing them to placate and try to win over the rebels who had brutalized them and killed their kin during the War.

The Fourteenth Amendment and Incorporation VI

All right. Back to the Fourteenth Amendment and Incorporation after a substantial delay. Let's look next at the speech of Senator Luke P. Poland (Republican, VT). Senator Poland's speech is sometimes cited as supporting the proposition that the Fourteenth Amendment was not intended to apply the Bill of Rights to the states. In fact, it proves exactly the opposite.

Senator Poland spoke on June 5, 1886 (thirteen days after Senator Howard gave his speech). He spoke only briefly about Section 1, precisely because, he said, he did not disagree with what had already been said (including, presumably, Senator Howard's explicit and widely-reported statements that the Privileges or Immunites Clause was designed to incorporate the Bill of Rights). Senator Poland explained that "all the questions in the proposed amendments to the Consititution have been so elaborately and ably discussed on former occasions during the present session that I do not feel at liberty to attempt to argue them at length and in detail."

Senator Poland's speech has been misinterpreted because he apparently did not understand that, in Barron v. Baltimore, the Supreme Court had held that the Bill of Rights did not apply to or limit the states -- or at least, in common with many Republicans, Senator Poland seems to have believed that the Constitution, properly construed, had always required the States to protect fundamental rights. He expressed the opinion that the Privileges or Immunities clause secured “nothing beyond what was intended” by the similar provision in the original Constitution -- and he then quoted the Privileges and Immunities Clause, Article IV, Section 2.

But, he complained, slavery had led “to a practical repudiation of the existing provision on this subject, and it was disregarded in many of the states. State legislation was allowed to override it.” It became “really a dead letter.”

In addition, Senator Poland analyzed Section 1 as follows:

“It is essentially declared in the Declaration of Independence and in all the provisions of the Constitution. Notwithstanding this we know that State laws exist, and some of them of very recent enactment, in direct violation of these principles. Congress has already shown its desire and intention to uproot and destroy all such partial State legislation in the passage of what is called the civil rights bill.... It certainly seems desirable that no doubt should be left existing as to the power of Congress to enforce principles lying at the foundation of all republican government if they be denied or violated by the States.”

The reference to “State laws . . . of very recent enactment” almost certainly alludes to laws passed by southern states restricting the right to bear arms, and the reference “to all the provisions of the Constitution” almost certainly includes the Bill of Rights, and the Second Amendment in particular. Congress had recently received a report complaining about the passage of laws in southern States depriving returning freedmen, recently discharged from the Union Army, of the right to carry arms (the penalties included flogging). In response, just days before Senator Poland’s speech, the House had passed the second Freedmen’s Bill, which contained a provision protecting “the constitutional right to bear arms.” (Ironically, the jurisdictional basis for the provision was the Thirteenth Amendment – reflecting the fact that many Republicans believed that that amendment had already imposed the Bill of Rights on the States.)

In short, Senator Poland may have had a mistaken understanding of the original meaning of the Privileges and Immunities Clause in Article IV. However, any reasonable person listening to Senator Poland’s comments in 1866 would have had every reason to believe that his views concerning Section 1 were entirely in accord with those previously expressed by Senator Howard and that Senator Poland believed that Section 1 would forbid States from depriving their citizens of their basic rights, including those embodied in the Bill of Rights.

Previous posts:

The Fourteenth Amendment and Incorporation I

The Fourteenth Amendment and Incorporation II

The Fourteenth Amendment and Incorporation III

The Fourteenth Amendment and Incorporation IV

The Fourteenth Amendment and Incorporation V