The Smart Culture. Robert L. Hayman Jr.

reported to the House in February 1866, would have authorized Congress to enact “all laws which shall be necessary and proper to secure . . . to all persons in the several States equal protection in the rights of life, liberty, and property.” But the proposal faced opposition from across the political spectrum—Republican congressman Giles Hotchkiss of New York, for example, lamented that it “is not sufficiently radical”—and Bingham joined the vote to table the amendment. Acting under the authority of the Thirteenth Amendment, Congress then passed, over Andrew Johnson’s veto, the Civil Rights Act of 1866, which declared the citizenship of the freedmen, and guaranteed to citizens “of every race and color” the “full and equal benefit of all laws.”

      For the framers of the Thirteenth Amendment—who were, after all, also the crafters of the civil rights bill—the abolition of slavery in the Thirteenth Amendment evidently contained the equality guarantee that Sumner desired: it was simply implicit, not explicit. The Civil Rights Act made this protection a part of the expressed law.

      But protection by statute was insecure: hostile courts or subsequent congresses could nullify or repeal the provisions. A revised Fourteenth Amendment was introduced in the spring of 1866; when it was ratified, in 1868, Congress had effectively constitutionalized the Civil Rights Act. The language of section 1 of the Amendment in fact runs parallel to the Act:

      All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the law.

      The reasons behind the minor change in syntax in the equality guarantee—from “full and equal benefit of all laws” to “equal protection of the law”—are by no means clear: the change appears, on the one hand, to broaden the scope of the states’ duty, by imposing on them an affirmative obligation to “protect”; but it may be, on the other hand, no more than Bingham’s preference for a convention that he had employed a decade earlier.

      But the picture, in any event, is completed in 1870, when the Civil Rights Act of 1866 is reenacted verbatim: now, the reasoning went, the act is authorized by the powers conferred on Congress in the Fourteenth as well as the Thirteenth Amendments. So, in effect, two constitutional amendments and two identical statutes were needed to assert the simple but vital principle of “equality under the law.”

      This history also captures in microcosm the second overwhelming impression generated by a review of the record: there is an omnipresent sense that the framers of Reconstruction are struggling mightily to reconcile the vast gulf between aspiration and actuality, between the real and the ideal. This meant, on the one hand, that much of their effort was designed to realize the guarantee of equality that they once thought was implicit in the Constitution, and that they subsequently made express. It also meant, on the other hand, that their aspirations were always informed by the real obstacles of the day: the political realities of the fragile union, the practical intransigence of the former master class, and the philosophical limitations inherent in the ideology of the natural order. They were, in general, committed to some vision of equality, but it was a vision invariably clouded by dissensus, ambivalence, and uncertainty. And, of course, by contradictions.

      The opponents of Reconstruction tended to labor under the old paradoxes: they were opposed to equality, for example, even if their arguments were ultimately rooted in the concept. In 1864, Democratic Congressman McDowell voiced his opposition to the creation of a Freedmen’s Bureau: “We also have a proposition to establish a Bureau of Emancipation,” McDowell complained. “Why do they overlook all the interests of the white men of the nation and rush blindly to the negro, and think nothing and do nothing but what they fancy is for his welfare?” It was, apparently, an early plea for race-neutrality, for “color blindness,” but it lacked something in the way of consistency. “We have a proposition also,” McDowell continued,

      pending in the other branch of Congress, which declares that all laws shall be repealed which make a distinction between the races—between white and black. Sir, this is the culmination of all the hopes of these radical fanatics. Here is the goal toward which they are directing all their efforts: to debase the white man to the degraded level of the African negro.

      Reconstruction’s defenders had their own difficulties with the concept of equality. Bingham insisted, on the one hand, that “[t]his Government rests upon the absolute equality of natural rights amongst men.” Then again, on the other hand, “[t]here is not, and cannot be, any equality in the enjoyment of political or conventional rights, because that is impossible.” Clarifying—in a fashion—Bingham explained that “Nobody proposes or dreams of political equality any more than of physical or mental equality. It is as impossible for men to establish equality in these respects as it is for ‘the Ethiopian to change his skin.’” What then was the “equality” guaranteed by our constitutional democracy? “The equality of all to the right to live; to the right to know; to argue and to utter, according to conscience; to work and enjoy the product of their toil, is the rock on which that Constitution rests—its sure foundation and defense.”

      The ambiguity was contagious. Thaddeus Stevens of Pennsylvania was perhaps the most radical of Republicans. But in June 1864, Stevens was moved to address Democratic Congressman Samuel S. Cox of Ohio: “The gentleman will allow me to say that I never held to the doctrine of negro equality.”

      “Then,” asked Cox, “I understand the gentleman from Pennsylvania not to hold that all men are created equal?”

      “Yes, sir,” Stevens replied, “but not equality in all things—simply before the laws, nothing else.”

      Years later, speaking in support of the “equal protection” guarantee of the Fourteenth Amendment, Stevens would explain his understanding of “equality . . . before the laws”:

      the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford * equal’ protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same.

      But Stevens’s Pennsylvania colleague, Democratic congressman Samuel J. Randall, thought the guarantee went further: “The first section proposes to make an equality in every respect between the two races . . . I feel it, in consequence, my imperative duty to oppose this section.”

      What the Democrats ostensibly feared—and what they seemed to detect in virtually every Reconstruction measure—was a movement to destroy the “natural” distinctions between the races, to ensure not merely “legal equality,” but “political equality” and “social equality” as well. But what did these terms mean?

      Roughly, “legal equality” embraced “legal” or “civil” rights: those rights, according to English jurist William Blackstone, that were enjoyed by all citizens, subject only to general restriction for the public good. The rights to buy and sell property and labor, and to sue to enforce these rights, were perhaps the most prominent “legal” rights. There was a widespread consensus that, almost by tautology, the Fourteenth Amendment guaranteed “legal equality” to the freedmen.

      “Political equality,” meanwhile, embraced the privileges of self-governance. These “political” rights—the rights to vote and to hold office, and, depending on one’s view, the right to serve as jurors (a “legal” right in some eyes)—could be limited by the terms of the democratic compact, as it had been in America, the home of the “white man’s government.” The question of “political equality” for the freedmen was much debated during Reconstruction, but largely settled in 1870 with the ratification of the Fifteenth Amendment.

      “Social equality,” however, was quite another matter. It was the most inclusive concept, embracing those aspects of social life inherent in economic