The Smart Culture. Robert L. Hayman Jr.

destroy the very biological distinctions on which the order was based. For Democrats, every Reconstruction measure was a misguided attempt to ensure “social equality,” and most would lead ultimately to the “mongrelization” of the races through intermarriage. It was a painfully constant refrain; as Tennessee Republican James Mullins put it in 1869,

      Sir, it is alarming that the Democratic party should be so much alarmed about their “social rights.” In the name of common sense and justice and truth what need they be alarmed about? I see nothing in the world alarming. But they are dreadfully alarmed about “social rights” and “social equality.” They seem at least to be dreadfully alarmed lest somebody will marry a negro or a negro will marry somebody else.

      Taken individually, each of the various concepts—“legal,” “political,” and “social” equality—admitted of its own ambiguities; collectively, they made most discussions of “equality” nearly incoherent. Consider, as one early example, the debate in 1864 over the use of railcars in the District of Columbia. Charles Sumner had introduced a resolution guaranteeing to all persons of any race the “equal enjoyment of all railroad privileges.” Thomas A. Hendricks of Indiana objected: “I do not understand from the Senator who has introduced this resolution that any negro has been denied the right to ride in the cars which, at the expense of the company, have been provided for their accommodation.”

      Sumner responded that “[t]here may be here and there, now and then, once in a long interval of time, a car which colored persons may enter, but any person who traverses the avenue must see that those cars come very rarely.” Henry Wilson added this anecdote:

      The other day a friend of mine came up from the Army, and with him two colored men, and they were forced to ride in a cattle car while he rode alone in a freight car . . . In this case these persons were forced into the cattle car, and the gentleman told me he rode nearly all the way alone, when there was room for a large number of other persons in the car. He inquired about it of two officers, and the answer was that the cattle cars were for “the niggers.”

      Hendricks was sure that he now saw the Republican plan:

      I am satisfied, sir, that the Senators have now declared the end to which we are to come, and that by the action of the Federal Government the social as well as the political equality of the negro is to be forced upon the white race. If that be the judgment of the country we shall have to accept it. The people that I represent in this Chamber have not yet adopted that sentiment. The distinction between the two races is yet maintained in Indiana. How much longer it will be maintained I am not able to say.

      Daniel Clark of New Hampshire now intervened: “I think the Senator from Indiana has mistaken the resolution. I understand him to characterize this as a resolution to force the negro into the cars. I understand it to be a resolution to prevent you from forcing him out—not to force social equality, but to prevent an outrage upon him.”

      Wilson tried to explain his vision of the “equality” behind Sumner’s resolution:

      I do not want to force on the Senator from Indiana or anybody else any class of men with whom he does not choose to associate, but I think the true policy is to let men stand equally before the law, to let men win their own positions, let them have the privilege of making out of themselves all that God and nature intended that they should be.

      The resolution passed in the Senate by a vote of thirty to ten. One week later, the Senate debates caught the attention of Democratic congressman Samuel S. Cox of Ohio. He, too, was certain he had detected the Republicans’ motives:

      The Senate of the United States is discussing African equality in street cars. We have the negro at every moment and in every bill in Congress. All these things, in connection with the African policies of confiscation and emancipation in their various shapes for the past three years, culminating in this grand plunder scheme of a department for freedmen, ought to convince us that that party is moving steadily forward to perfect social equality of black and white, and can only end in this detestable doctrine of—miscegenation!

      Maintaining—or even detecting—the distinction between “legal equality” and “social equality” was no simple task, but as these debates suggest, it was in some minds a terribly important one. For the Democrats, the Republicans were always crossing the line; for the Republicans, it was all Democratic paranoia; both sides agreed that there was a line; and neither side had any idea where or how to draw it.

      This is one of the reasons that even the equality they agreed on—“legal equality”—was itself so ambiguous: increasingly, its meaning was defined by negative reference to terms that had little independent integrity and that could not be easily distinguished. Legal equality was not social equality, and the consensus ended there.

      But this generated another dilemma, one that the framers of Reconstruction could not avoid and yet did not resolve. Divorced from the theoretical realms of the “political” and the “social,” “equality” was to do its work in the realm of “law.” But that can be a decidedly abstract realm: securing “legal equality” can be an exercise in mere rhetoric or form; measuring conformity to the mandate becomes a matter of deductive fiat. “Legal equality” might require, for example, the desegregation of railcars, or, for that matter, the end of antimiscegenation laws; then again, it might not, depending entirely on the frame of reference.

      Consider one final colloquy. In January 1866, during the debates over the civil rights bill, Democratic senator Reverdy Johnson of Maryland charged that the guarantee of “equal benefit of all laws” was a guarantee of the right of miscegenation. Under the proposed law, Johnson maintained, “it will be admitted that the black man has the same right to enter into a contract of marriage with a white woman as a white man has.” Laws prohibiting interracial marriages would thus operate unequally and would be void.

      But Republican William P. Fessenden of Maine saw it differently; he utilized a different point of comparison. The black man, according to Fessenden, “has the same right to make a contract of marriage with a white woman that a white man has with a black woman.” Laws prohibiting all interracial marriages would thus operate equally, and would be valid.

      It was impossible—it is still impossible—to say who is correct; as Johnson put it, “whether I am wrong or not, upon a careful and correct interpretation [of the bill], I suppose all the Senate will admit that the error is not so gross a one that the courts may not fall into it.”

      This was the hopeless conundrum of legal equality. Separated from “social” life—separated from the “real” world—equality under law too easily devolves into empty form. “Legal” equality becomes wholly dependent on an abstract frame of reference, and that reference—the relevant comparison—is utterly arbitrary. There is thus no way to measure “legal equality”: it exists—or not—only by proclamation.

      “Legal equality” is a profoundly problematic concept. At its best, it is ambiguous and indeterminate; at its worst, it dissolves into empty form. Many of the framers of Reconstruction recognized its problems at the time. But it was all they could agree on.

      What, then, is a fair verdict on the Reconstruction effort? On the one hand, it might be said that the framers of Reconstruction lacked the resolve to provide practical redress to the problems of the freedmen, and the foresight to see how their general remedy—the guarantee of legal equality—could be so easily perverted by subsequent generations. Their inability, or unwillingness, to enter the realm of “social equality” meant that the only economic justice they could secure was through the same formal liberty bequeathed them by the original framers. But extending that liberty to the freedmen did very little to disturb the real-world hierarchy of race.

      They might have done more. Land reform had been a part of the antislavery reform movement as far back as 1821. As Thaddeus Stevens put it, in the midst of Reconstruction, “Forty acres of land and a hut would be more valuable to [the freedmen] than the immediate right to vote. Unless we give them this we shall receive the censure of mankind and the curse of Heaven.” But they did not divide the slave plantations, nor give to the freedmen more than an “equal opportunity” to succeed