Guest Essayist: Professor Forrest Nabors


We remember 1865 as the year when our Civil War ended. But by another measure, the standard of von Clausewitz, that war is politics continued by other means, the political conflict that erupted into formal war did not end until after Rutherford B. Hayes was sworn in as president in 1877. The period known as Reconstruction after the war continued that political conflict and was also violent, though the combatants were paramilitaries and its wars were not wars of maneuver with grand armies.

General Robert E. Lee surrendered his military forces to General Ulysses S. Grant at Appomattox on April 9, 1865. The next week, Confederate General Joseph E. Johnston showed that a militarily defeated opponent still has resources, and can use them to obstruct his enemy from achieving his political goals. Johnston still commanded a larger force than Lee had surrendered. He offered surrender on the condition that the opposing general, William Tecumseh Sherman recognize the full restoration of the South to its political rights under the Constitution.

This would mean that rebels would immediately rejoin the national government that at that very moment they were still violently opposing. It would mean that southerners would participate in any decision by the national government to judge the South. Rebels would sit in judgment over themselves. In his favor, Johnston could count on Sherman’s eagerness to end bloodshed, and on obvious southern willingness to incur bloodshed to achieve their political goals. Only restraint by the War Department halted Sherman’s consideration of these terms.

This brief negotiation between Johnston foreshadowed the terms of political gamesmanship during Reconstruction. For the next twelve years, a frustrated and sometimes deliberately misled northern public would wonder when the South would obey the letter and spirit of the many Reconstruction Acts and Amendments originated by Congress. The South could use deception, unofficially sanctioned violence, and sympathists in the national government to outlast northern patience and to resist the political goals of their military conquerors.

The war changed political coalitions. Antebellum opponents of slavery were not all alike. Some always were principled opponents, like abolitionist William Lloyd Garrison, and would be reliable supporters of equal citizenship for the emancipated. Some, like the representative of the poor white class of the South, President Andrew Johnson, hated slavery because it supported a ruling oligarchy, but cared not at all for the natural rights of the human beings who were slaves, which was revealed when he actively opposed equal citizenship for the emancipated after the war. Solid northern Republicans before the war, like Joseph P. Bradley, appointed to the Supreme Court in 1870, later acquired strange new respect for southern-style states rights, which permitted paramilitary violence to rage against white and black Republicans.

Before the war, some northern Democrats like Benjamin Butler of Massachusetts believed that patriotism required compromise with the South on the question of slavery, and he did not meditate on the denial of the slave’s natural right to equal liberty. But the war opened his eyes. At New Market Heights he led colored troops and observed their courage in battle. Seeing the faces of the dead, “upturned in the shining sun to heaven,” he felt that by his prior course of conduct before the war, he had wronged them. Speaking for a Civil Rights bill in 1874 on the floor of Congress, Butler remembered the battle, and “among my dead comrades there I swore to myself a solemn oath, ‘May my right hand forget its cunning and my tongue cleave to the roof of my mouth if I ever fail to defend the rights of these men who have given their blood for me and my country this day and for their race forever.’” Butler promptly switched parties and transformed from a state rights Democrat into a radical Republican. Surprisingly this effect of the war also fell upon former Confederates and brought some into the Republican Party, which was pledged to uphold the equal citizenship for the emancipated. Lee’s “Old War Horse,” General James Longstreet was one.

In short, all was chaos in Reconstruction. The politics of the past was no predictor of the politics of the future. Just as Lincoln said of their situation in 1862, that because “our case is new, so we must think anew, and act anew,” in 1865 the case was again new and required the wisest statesmanship to think and act anew.

The greatest loss to the Republican cause for equal citizenship was the defection of poor whites in the South. Conditioned by the ranked ordering of oligarchic political society, the poor whites would not accept equality with blacks when their oligarchic rulers were militarily defeated. This class turned against the emancipated and drove the anti-black violence, rather than form a powerful coalition with them. A lesser-recognized but important subtext of the history of the Ku Klux Klan and related organizations was that at first, the old oligarchy of the South deplored the anti-black violence perpetrated by poor whites and threatened violent retribution. The oligarchy was accustomed to presiding over order and peaceful submission of all to them. But the violence continued anyway, and the old ruling class gradually decided to use it.

The most important Supreme Court decision during Reconstruction was United States v. Cruikshank, which held that the Fourteenth Amendment only restricted state governments from violating the rights of citizens under the U.S. Constitution. Therefore, the Congress could not prohibit, and the executive arm of the United States government could not prosecute private persons for violating the rights of other citizens. Hence, the paramilitary bands that were murdering black Americans could only be interdicted by state law. But southern authorities and courts looked the other way. Cruikshank opened a political opportunity for violence to succeed. The old oligarchy accepted the invitation.

In the 1876 presidential election campaign between Republican Rutherford B. Hayes and Democrat Samuel Tilden, violence engulfed the South and blacks were disenfranchised. In Hamburg, South Carolina an army in-all-but-name assembled with the aim of killing blacks who insisted upon exercising their right to vote. Veteran Confederate officers drawn from the old ruling class once again led men in homespun uniforms, red shirts, but this time, the war was not a “rich man’s war, poor man’s fight.” This war was a poor white’s war, and they intended to redeem the South for the white man. The dead were counted; the northern public was shocked.

When he led Union troops, poor whites in Confederate uniform feared and respected Ulysses S. Grant. Now as a lame duck president, restrained by the Supreme Court, he was impotent. Grant called the Hamburg massacre, “cruel, blood-thirsty, wanton, unprovoked,” and “a repetition of the course which has been pursued in other Southern States within the last few years…. How long these things are to continue, or what is to be the final remedy, the Great Ruler of the universe only knows…. There has never been a desire on the part of the North to humiliate the South. Nothing is claimed for one State that is not fully accorded to all others, unless it may be the right to kill negroes and republicans….This has seemed to be a privilege claimed by a few States.” But he could do nothing.

This was the president’s reply to a request by South Carolina Governor Daniel Chamberlain for federal intervention. Chamberlain was born in Massachusetts and educated in law at Harvard, from where American republicanism had sprung and covered the land. He served those ideals that accompanied the American Founding as a Republican, and as a combat officer in the Union Army. Transplanted to South Carolina after the war, his installation as governor represented the high water-mark of regime change in the South. But the next year, 1877, the last Union troops in the South were removed from South Carolina, where oligarchic rule in America was first championed, where oligarchy-protecting, state sovereignty doctrine was first invented, and where secession and war began. South Carolina and her insurrectionary sister states, shrugged off regime change, and resumed a new course as a white man’s democracy.

The leaders of the Hamburg massacre included General M.C. Butler and “Pitchfork” Ben Tillman both combat veterans of the Confederate army. Butler was cousin to Congressman Preston Brooks who almost beat Charles Sumner of Massachusetts to death on the Senate floor, and came from a distinguished slaveholding family. He would go on to serve in the United States Senate for three terms. Tillman served as both Governor and U.S. Senator, and continued to publicly boast of and praise the murder of blacks, into the Twentieth Century. Second class citizenship for black Americans, if it be called citizenship at all, was henceforth secured, and the long night of segregation, discrimination and lynching commenced.

Forrest A. Nabors is Assistant Professor of Political Science at the University of Alaska, Anchorage, a founding partner of Alyeska Venture Management, and a political news commentator. He has recently completed The Great Task of Reconstruction which is now under review for publication.

1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    The error of United States v. Cruikshank is in that the civil rights of Equal Protection and Due Process does apply to private person’s actions on private person’s. The eminent effect of the 14th amendment was to overturn partially the 11th amendment’s ban on federal courts reviewing of cases arising against a state’s own sovereign immunity. Those expanded federal powers then permitted the federal court to discover whether or not a state hindered one of its citizens from procedurally sueing another concerning a state law while unequally allowing other citizens the same right. This is essentially the fundamental civil right of Equal Protection of the laws for Equal Protection is denied if the state denies people the right to bring a lawsuit. The matter at hand in the lawsuit does not have to be against the state or the state as an actor. Likewise, federal courts can discover whether or not Due Process is denied to a state’s own citizen’s in affording a fair defense. The petitioner of a complaint against a person in such a case does not have to be a state actor either. But Due Process and Equal Protection are strictly courtroom procedural rights. They do not pertain to actions that may occur outside of the courtroom other than giving court room procedure effect (did an officer read your rights,, when arrested as such usually happens outside the courtroom.) To say that the 14th amendment does not include private personal affairs is then to render much of a state’s own polity vulnerable as one would hope that the vast majority of the population of a state are private citizens rather than an army of state bureaucrats.


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