The Smart Culture. Robert L. Hayman Jr.

as far as possible, to improve their condition in life.”

      What followed is an early version of a colloquy that would be replayed countless times over the next two decades—and many times more, right up to the present day. It is at once enlightening and bewildering, as befits, perhaps, its subject. At issue was the meaning, theoretically and practically, of that elusive term “equality.”

      Davis: The Senator objects to the argument which treats of the proposition of himself and his friends, as the assertion of equality between the negro and white races. Do I understand him as denying the equality, or does he admit the equality?

      Wilson: The natural equality of all men I believe in, as far as the rights are concerned. So far as mental or physical equality is concerned, I believe the African race inferior to the white race.

      Davis: “Natural equality” would imply that God had created them equal, and had left them equal, down to the present time. Is that what the Senator means?

      Wilson: I believe in the equality of rights of all mankind. I do not believe in the equality of the African race with the white race, mentally or physically, and I do not think morally.

      Davis: When the Senator says “equality of rights of all men,” does he mean political and social rights—political and social equality?

      Wilson: I believe that every human being has the right to his life and to his liberty, and to act in this world so as to secure his own happiness. I believe, in a word, in the Declaration of Independence; but I do not, as I have said, believe in the mental or moral or physical equality of some of the races, as against this white race of ours.

      Davis: Then the Senator believes and he does not believe, and he changes his position so rapidly in giving his answers that it is impossible to tell what he does believe.

      Harlan: Will the Senator allow me to ask him a question?

      Davis: Oh, yes.

      Harlan: Do you believe in the political and social equality of all individuals of the white race?

      Davis: I will answer you, yes; the exact political equality of all white men who are citizens of the United States. That equality may be lost by the commission of crime; but white men, the descendants of the Adamic race, under our institutions, are born equal; and that is the effect of the Declaration of Independence.

      Harlan: If the Senator will allow me, being “born equal” is a phrase that involves the proposition that the Senator from Massachusetts has stated. I inquired as to their social and their political equality.

      Davis: Their political equality, I stated, exists, unless it is lost by the commission of crime, or some disqualification which attaches to the individual, not to the race. Their social equality will depend upon a great variety of circumstances, being the result of education and many other contingencies. Those are conventional, not political, rights. They do not belong to the institutions of the country. They may be matters of taste. Every man has a right to select his own associates; and he may assert his superiority, and the person he excludes may regard him as an inferior. All that has nothing to do with anything which we have a right to consider. This is not a debating society. We are not here to deal in general theories and mere speculative philosophy, but to treat subjects as political questions.

      Seven months later, the “political question” would start to be answered with the election of Abraham Lincoln as president. The slave South seceded from the Union; Jefferson Davis became president of the Confederate States of America. Their rebellion, Davis insisted, was in the name of liberty. In 1863 Union General David Hunter defied military protocol by writing Davis directly to protest the brutal treatment of captured black soldiers; in the process, he shared his thoughts on the slaveholders’ conception of liberty:

      You say you are fighting for liberty. Yes you are fighting for liberty: liberty to keep four millions of your fellow-beings in ignorance and degradation;—liberty to separate parents and children, husband and wife, brother and sister;—liberty to steal the products of their labor, exacted with many a cruel lash and bitter tear;—liberty to seduce their wives and daughters, and to sell your own children into bondage;—liberty to kill these children with impunity, when the murder cannot be proven by one of pure white blood. This is the kind of liberty—the liberty to do wrong—which Satan, Chief of the fallen Angels, was contending for when he was cast into Hell.¹⁹

      In the end, a different principle prevailed. After four years of war, in which over six hundred thousand soldiers lost their lives, the United States of America was in need of Reconstruction. By 1868, its amended Constitution would contain an explicit guarantee of equality. But precisely what that meant, and how it was to be realized, remained far from certain.

      The Contradictions Reconstructed: The Conundrum of Formal Equality

      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