CHAPTER 3
The Family Politic
On December 18, 1865, the Thirteenth Amendment to the Constitution was ratified. As the end product of decades of African American activism, abolitionist agitation, and women’s petitioning, as well as the official legal acknowledgment of African Americans’ wartime self-liberation, the amendment was a triumph for advocates of American freedom. However, its ratification also generated a profound political crisis that required further constitutional amending to remedy. As the Thirteenth Amendment outlawed slavery, it overturned the Constitution’s organization of congressional representation. Article I, Section 2 had permitted southern states to count three-fifths of their enslaved populations toward their representation in the House. As part of the Great Compromise of 1787, this three-fifths clause kept southerners from gaining national political power through the representation of people they defined as property. It stated, “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years and excluding Indians not taxed, three-fifths of all other persons.”1 By eliminating the category of unfree “other persons” in the United States, the Thirteenth Amendment added four million free persons to southern states’ representation totals and created a situation whereby the South stood to benefit politically from the emancipation it had fought a long and bloody war to prevent.
The newly convened Republican-dominated Thirty-Ninth Congress put replacing the three-fifths clause at the top of its policy agenda. Although the prospect that the South could gain a significant political victory in the face of its military defeat was galling, more disturbing for Republicans was that a conservative alliance could result if the House’s representation were not adjusted. If the South returned to Congress able to count its whole population, southern representatives could ally with northern conservatives and gain a congressional majority for the Democrats. Radical Republicans feared that they would then use this majority to overthrow the northern victory and re-enslave the newly emancipated. More moderate Republicans feared the partisan losses that could occur. Regardless of their political alignment, most Republicans found it simply unthinkable that white southerners could gain power by the liberation of the very persons they had been so determined to keep enslaved. To prevent this, the Republican members of the Thirty-Ninth Congress understood that they would have to further amend the Constitution.
Yet this was not a proposition to take lightly. Since its ratification, excluding the Bill of Rights, the Constitution had been amended only three times. Two of those previous amendments made no alterations to the original founders’ text: the Eleventh Amendment supplemented and clarified existing constitutional provisions, and the Thirteenth Amendment introduced a new national policy (emancipation). Only one constitutional amendment since the document’s creation had changed any of the founders’ original provisions: the Twelfth Amendment modified the procedure for electing the president and vice president. But this amendment, ratified in 1804, had been drafted and passed by some of the founders themselves. Thus, in 1865 the members of the Thirty-Ninth Congress were poised to become the first new group of American politicians actually to change the founders’ Constitution.
To justify this action, postwar congressmen sought to persuade themselves and their colleagues of two things: first, that they had a legitimate right to modify the founders’ constitutional arrangements, and second, that the changes they sought were consistent with the ideals of those founders. But for many Republican politicians after the Civil War, America’s founders were problematic models to turn to for guidance in rebuilding the postbellum polity. Many Republicans viewed the founders as partially responsible for the recent war because of the concessions they had made with slave interests. But they were also aware that these compromises had created the very representation problems they were now facing. This produced a distinct sense of anxiety among congressmen about the founders’ flawed political legacy, about themselves as the heirs of that legacy, and about their own abilities to alter the nation’s fundamental text. As New York representative Roscoe Conkling put it, “Did the framers of the Constitution ever dream of this? Never, very clearly. Our fathers trusted to gradual and voluntary emancipation, which would go hand in hand with education and enfranchisement. They never peered into the bloody epoch when four million fetters would be at once melted off in the fires of war. They never saw such a vision as we see.”2 Members of the Thirty-Ninth Congress frequently expressed similar anxiety in congressional debate as they reassessed the founders’ original intentions, assigned new meanings to their behavior, and interpreted the founders’ residual texts in a manner consistent with their own current political theories. At the very least, congressmen had to overcome this anxiety and redefine their national paternal legacy in a way that was consistent with their own policy goals. Ultimately, however the members of the Thirty-Ninth Congress reconstructed the founders’ ideological and political legacy as they reconstructed the nation.3
Republican Reconstruction
When the Thirty-Ninth Congress began to meet in December of 1865, Reconstruction policy was its primary task. Because of the timing of nineteenth-century elections, Congress was not in session in April of 1865 when Robert E. Lee surrendered at Appomattox on the ninth, when President Abraham Lincoln was assassinated five days later, or when Vice President Andrew Johnson inherited the nation’s highest office on the fifteenth. Although elected in 1864, the Congress did not convene until December 1865.4 Therefore, in the months immediately following the war’s end, the task of reconstructing the nation fell to the new president. Refusing to call a special legislative session, Johnson preferred to believe that he could rapidly and simply reunite the warring sections before Congress resumed.
Shut out of the earliest days of Reconstruction, Republican congressmen kept a close watch on the new president. Frustrated with Lincoln’s cautious conservatism, radicals hoped that Johnson’s well-known dislike of the southern aristocracy, combined with his interest in an expedited national reunification, would translate into justice for the emancipated.5 But by the early summer of 1865, it was becoming increasingly apparent that Johnson was more interested in restoring political citizenship to white southern aristocrats than in extending it to southern freedmen. He rapidly reconstituted state governments and tacitly approved the restrictive labor and social “black codes” that they passed. These actions signaled to northerners and southerners alike that the Johnson administration welcomed both a resumption of white planter power and a resurgence of the antebellum race-based system of oppressive labor—everything that radical Republicans had feared from a conservative Reconstruction.6 Charles Sumner met with the president when he arrived in Washington for the congressional session and reported that Johnson “does not understand the case. Much that he said was painful, from its prejudice, ignorance, and perversity.”7
Although forced to the sidelines by the intersession break in Congress, many Republicans in addition to Sumner were developing their own Reconstruction plans as the congressional session approached.8 In a vital presession caucus meeting on December 2, a seven-member group, including the leading radical Pennsylvanian Thaddeus Stevens, the Illinois moderate Elihu B. Washburne, and the Missouri abolitionist Henry Blow, proposed that Congress organize a special joint committee on Reconstruction. This committee would investigate southern conditions to determine whether the states were ready to return to Congress and would evaluate the condition of the emancipated.9 This committee, the New York Times reported hopefully, “is indicative that the matter will be promptly and speedily disposed of.”10 Despite the Times’s optimism, a speedy resolution to the myriad of Reconstruction’s problems seemed unlikely. However, the Republicans’ plan to form this committee certainly indicated the new Congress’s intent to promptly and speedily replace, or at the very least supplement, Johnson’s policies. When it convened two days later, before any other regular business had begun, Stevens proposed the caucus’s Joint Committee on Reconstruction.11 The resolution passed immediately, and Stevens was appointed to chair the nine-member House delegation. On December 9, the Senate passed a similar resolution and appointed the moderate William Pitt Fessenden of Maine to lead the committee’s six senators. Over the next six months, these two congressmen would preside over a diverse group that would formulate Congress’s early Reconstruction plan, define the civil rights of all Americans, debate the legitimate boundaries of the American political community, and determine a new means for apportioning representation in postwar nation.
Although the Joint Committee on Reconstruction was primarily responsible for addressing the critical questions of reunification, in the first few months of the Thirty-Ninth Congress, other members of the House and Senate also debated how to redefine both the rights and duties of individuals and postbellum political relationships. In particular, questions of political participation, individual rights, and the obligations of citizens were at the heart of the debate on four key legislative proposals: the Civil Rights Act (Senate Bill 61), the bills in both House and Senate to enfranchise black men in Washington, D.C. (House Bill 1 and Senate Bill 1), and the Joint Committee of Fifteen’s first representation amendment (House Resolution 51). In debating these bills senators and representatives sought to clarify exactly which rights accompanied membership in the reconstructed American political community.
The Civil Rights Act (Senate Bill 61) was one of Congress’s earliest attempts to define the legal, civil, and political status of the emancipated. Primarily, the act sought to overturn the black codes that reconstructed southern legislatures passed to keep African Americans in de facto enslavement. Interpreting these laws as signs of southern resistance to northern military victory, even moderate congressional Republicans sought to overrule them by using federal power to enforce the Bill of Rights.12 To do this, a number of civil rights measures were proposed in the early weeks of the Thirty-Ninth Congress.13 But the proposal Congress pursued was that proposed by the powerful moderate and chair of the Judiciary Committee, the Illinois Republican Lyman Trumbull.14
Like other congressional efforts to legislate equality, Senate Bill 61 did not address social changes, focusing instead on legal and political privileges. Civil rights, Trumbull said, were the rights of all “inhabitants” of the United States to “have the same right to make, and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, and shall be subject to like punishment, pains, and penalties.”15 The bill’s language precisely mirrored that of the Fugitive Slave Act of 1850, a deliberate attempt to underscore the bill’s constitutionality.16 Trumbull believed the bill to be fairly moderate and thought it would appease both President Johnson and conservative Republicans. His belief was not unfounded. He had discussed the bill with the president and supplied him with drafts as the bill evolved in committee. With no indication of executive disapproval, Trumbull brought the bill to the floor convinced that Johnson approved of both its language and its goals.17
Senate Bill 61 passed the Senate on February 2, 1866. In the House, it was referred to the Judiciary Committee for consideration.18 After some deliberation, the committee changed the bill’s language to apply its provisions to “citizens” rather than “inhabitants.” This was a critical change. Because the 1857 Dred Scott decision denied all African Americans citizenship, “changing the Civil Rights Act’s language required the House to explicitly determine who was a citizen in postwar America. With the bill’s passage on March 13, the House defined citizenship as belonging to all native-born Americans regardless of race or color, and identified the rights adhering to that citizenship as those historically possessed by white male Americans.19
Two days later, the Senate agreed to the House’s amendments and sent the bill to President Johnson for his signature.20 Reflecting the increasing distrust between the executive and Congress, Johnson vetoed it on March 27. This veto surprised Trumbull, further alienated radical Republicans, and drove many moderates such as Fessenden to oppose Johnson’s policies.21 Although both chambers overrode Johnson’s veto in early April, Republicans remained concerned that the conservative courts would not uphold the act’s provisions.22 To sidestep any potential judicial opposition, in late April the Joint Committee on Reconstruction incorporated the Civil Rights Act’s provisions into the first section of its omnibus bill House Resolution 127, which would ultimately become the Fourteenth Amendment.
Whereas extending civil rights to African Americans was an almost universal goal among Republicans, extending political rights was a far more controversial proposition. Despite the controversy, the political needs of the Republicans, the views of the radicals, and the goals of African Americans themselves drove the issue to the center of congressional conversations and ultimately into the second section of House Resolution 127. As early as 1864, Congress began receiving petitions, hearing outside speakers, and fielding proposals for how to enfranchise African Americans in the District of Columbia.23 Although the traditions of federalism dictated that the states controlled the franchise, because the Constitution gave Congress exclusive jurisdiction over Washington, D.C., and the territories, the District had long been considered as an ideal place for implementing policies that would be more difficult to actualize in the states.24 This theory was tested during the Civil War when, in April of 1862, Congress emancipated the District’s enslaved people nine months before Lincoln’s Emancipation Proclamation and three years before the Thirteenth Amendment ended American slavery permanently in all U.S. territory.25 During early Reconstruction, some black suffrage advocates and Radical Republicans argued that a similar trajectory could be applied to universal manhood suffrage, claiming Washington as a good site for this political “experiment.”26
Public sentiment about universal manhood suffrage in D.C. was mixed. Black Washingtonians mobilized in the months between emancipation and the congressional session to support enfranchisement efforts. In addition to a July 4, 1865, rally at the White House, the African American community in D.C. formed the United Franchise League and First Ward Civil Rights Association to petition Congress for the ballot.27 These groups sent seven petitions in the first five weeks of the Thirty-Ninth Congress supporting black men’s suffrage in the District, one of which was signed by 2,500 of the city’s African American citizens.28 Support among the white community was less enthusiastic. In July of 1866 the Democratic National Association of the District of Columbia issued a public proclamation declaring that African Americans lacked sufficient intelligence to vote in the District and warning that racial amalgamation would result if they were enfranchised.29 In December, the District’s city council officially declared that “the white man, being the superior race, must… rule the black.” That same month, 6,591 people in D.C. and Georgetown agreed and defeated a black suffrage referendum. Only 35 Washingtonians voted in favor of enfranchising the District’s black male citizens.30 Congressional radicals dismissed these results, blaming the referendum’s defeat on abolitionists who had abstained from voting to protest African Americans’ exclusion from the polls. Others argued that the skewed election results indicated the extent to which Washington’s population was disloyal to the Union, and thus it was even more urgent to fill the capital’s voting rolls with loyal African American voters.31
But voters in Washington, D.C., were not alone. In most states suffrage referenda met the same fate as the one in Washington did.32 Voters rejected universal manhood suffrage in New York in 1846 and 1860, in Connecticut and Wisconsin in 1847, in Michigan in 1850, and in Iowa in 1857. The only black suffrage referendum to pass before the war was in Wisconsin in 1857.33 During and immediately after the war, this trend did not change: voters in New York (1860), Illinois (1862), Colorado Territory, Connecticut, Wisconsin, and Minnesota (1865) all defeated referenda to enfranchise African American men.34 Radical congressmen were undeterred by these election results. The very first bills introduced in the Thirty-Ninth Congress were to enfranchise African Americans in the District (House Bill 1 and Senate Bill 1).35 After five days of consideration in December, the Judiciary Committee advised the House to pass the bill, and it did so on January 18, 166 to 54.36 It then sent the measure to the Senate for consideration.37 Despite the bill’s rapid early momentum, enthusiasm lagged in the more conservative Senate, where many moderates remained ambivalent about the implications of federalism. Even with the right to control the franchise in Washington, moderates were concerned that without a constitutional amendment, Congress could not justify interfering with suffrage rights in the states. Thus the Senate only briefly considered Senate Bill 1 in January and House Bill 1 in February before postponing them until June.38 On June 27, it further postponed Senate Bill 1 until the next congressional session.39
The Senate’s inaction reflected an emerging approach to the franchise that preserved traditional state sovereignty over suffrage by linking voting rights to congressional representation. This enabled Congress to tackle both of its most pressing problems at once: how to replace the Three-Fifths Compromise and how to protect the rights of the freedmen without over-extending federal power.40 Logically, supporters argued, if the southern states were permitted to count their full populations toward their congressional representation, but the African Americans in these states were empowered to vote (and by implication voted Republican), then those Republican voters could prevent a Confederate resurgence. But to implement this plan for protecting the Union and the freedmen, the Constitution had to be amended.
The first significant proposal for a suffrage/representation constitutional amendment came from the Joint Committee on Reconstruction. Thaddeus Stevens’s initial proposal was to base a state’s congressional representation on its voting population. Regional objections from eastern states with high numbers of women and children rendered this proposal untenable. So the committee agreed instead on House Resolution 51, which declared that if states did not enfranchise African Americans, they would lose the right to represent that portion of their population. But if the states did enfranchise their black citizens, they could count fully toward representation. The committee believed that Resolution 51 was a fairly moderate proposal with a good chance of passing both House and Senate.41 Thus it sent the measure to the House for consideration on January 22.42
Debating the resolution brought members of the Thirty-Ninth Congress face-to-face with their own political legacy. When these men were elected during the war, they knew that they would have a profound responsibility for continuing the national struggle. With the war’s end, they surely realized that the responsibility for reconstructing the war-torn nation had become theirs. But the problem of suffrage and representation created by the Thirteenth Amendment put them in the position of having to alter the nation’s fundamental founding text. The members of the Thirty-Ninth Congress had to become the founders of the new postwar America.
To grapple with this responsibility, congressmen sought to understand, in debates about representation and suffrage, the values and goals of the founders. Primarily, they had to decide whether the Constitution was fundamentally a proslavery or an antislavery document. From this assessment, it seemed that they could then extrapolate what the founders might have intended for a postslavery nation and evaluate the extent to which their own policy proposals were consistent with the founders’ ideals.43 Not surprisingly, congressmen’s interpretations of the Constitution and the founders’ legacy divided along party lines. The Democrats, who sought to maintain both partisan power and white supremacy, claimed that the intent of the founders was best reflected in their behavior, which indicated that they had not intended for African Americans to join the body politic. Many Republicans, on the other hand, were familiar with antebellum abolitionists’ attacks on the founders and the Constitution as proslavery. Even if they disagreed with these attacks, Republicans were nevertheless acutely uncomfortable with the compromises the founders had made with the slave interests. To grapple with these compromises, they turned to the founders’ own words. They argued that the founders’ real perspective on equality was reflected in the text of the Declaration of Independence, a document free from any problematic concessions to slavery. Thus both parties, to a certain extent, acknowledged the Constitution’s complicity in perpetuating inequality among the races in the antebellum United States.
However, a problem remained. Neither the founders’ behavior nor their constitutional language offered a definitive record of what they had thought about slavery, let alone presented some sort of plan for a postslavery nation. So how could the Union be reconstituted in a manner consistent with the wishes of the founding fathers? Gender offered a means by which this problem could be resolved. By appropriating gendered familial relationships as the central metaphor for arrangements of institutional power, congressmen based their reconstruction of the political nation on the connections between men: past, present, and future.44 In debates, both Democrats and Republicans repeatedly referenced the founders as “fathers” and sought to justify their own policies as legitimate filial legacies.45 Both parties adopted fraternal language to reunite the sections, and both used ideas about masculinity to distribute power within their imagined national political families. Positing the founders as benevolent fathers, themselves as legitimate and worthy sons, and either southern white or African American men as brothers, the members of the Thirty-Ninth Congress were able to disregard the founders’ problematic slaveholding legacy, celebrate either their language or their behavior as their partisan interests deemed proper, and thus reconstruct both the founders and the political union. In this manner, gender became central to congressional rights-based rhetoric, particularly in discussions about Senate Bill 61, House Resolution 51, and House Bill 1, as both parties mobilized masculinity to structure their ideal vision of the community politic.46
The Constitution of Our Fathers
The Joint Committee’s proposal to amend the Constitution (House Resolution 51) was immediately controversial. Congressional conservatives, most often Democrats, particularly opposed any amendment that dealt with voting rights because they viewed it as improper federal interference with the states’ right to determine their franchises. But more fundamentally, they contended that any alteration to the Constitution violated the founding fathers’ original intent. To reject constitutional amendment and black suffrage, both congressional Democrats and some conservative Republicans structured political relationships as familial connections existing exclusively between white males, claiming that to properly maintain the founders’ legacy, this imagined white male political family must be preserved without intrusion from outsiders.
Situating the founders as infallible white fathers whose legacy conservative sons sought to preserve and protect, Democrats rejected the inclusion of African Americans in this political family as incompatible with the fathers’ vision of an ideal republic. Using a familial metaphor for the political community enabled Democrats to gender political belonging, draw analogies between political and gendered interactions, and capitalize on the power of gendered racialized rhetoric to identify the legitimate political family as white. These rhetorical maneuvers upheld Democrats’ leniency toward the white South and antipathy toward African Americans but also emphasized the importance of gender in the reconstruction of political rights.
Democrats first expressed their opposition to constitutional amendment by claiming that the Constitution simply did not need revision. Emphasizing that the constitutional words of the founders were clear reflections of their true intent, congressional Democrats argued that in the Constitution itself the founders had sanctioned racial inequality.47 Further, the Constitution’s text was such a sacred legacy that it could not be changed without desecrating the fathers’ original plans. For example, Reverdy Johnson, a minority member of the Reconstruction Committee, opposed House Resolution 51 on the grounds that it violated the fathers’ intentions for the separation of powers. On February 9, he asked, “The question is, what did our fathers design? Where was the regulation of suffrage to be left? Until… the last three or four years—no man was so wild as to imagine that the suffrage was not exclusively for State jurisdiction.”48 The “wild” idea that Congress could influence how states regulated their suffrage, Johnson argued, violated both the founders’ arrangements of power and their federalist ideals. Some Democrats took this argument a step further and claimed that the Constitution made by the fathers was so sacred that any attempt to amend it in any way imperiled the fundamental principles of the American democracy. Andrew Rogers, a conservative Democratic representative from New Jersey, declared on January 22, 1866, that the resolution was particularly dangerous because it associated voting rights with representation. It was
a proposition to change the organic law of the land… which was laid down by our fathers at the formation of the Constitution.… Our fathers, in pursuance of the object of the Revolution, and in the exercise of their wisdom, embodied in it the doctrine that representation should not be based upon the voting population of the country.… This joint resolution… saps the very foundation and principles upon which the genius and institutions of this country have rested from the commencement of its political existence.49
Rodgers’s fellow New Jersey representative Edwin Wright agreed, declaring that “this continued tinkering with the Constitution is pregnant with danger in the last degree.”50 The danger, the Kentucky senator Garrett Davis claimed, came from allowing the passions of the present moment to overshadow the ideals of the revolutionary generation. Congress’s attempts to legislate civil and political rights, he argued, would “be a development of our system of government of which the fathers never spoke or wrote, or which their sons never dreamed until the acme of the present great national frenzy.”51
Any proposed change to the Constitution in the midst of the national frenzy of early Reconstruction, Democrats such as these declared, was not only a dangerous threat to the ideals of the fathers but also a dangerous usurpation of their paternal role. For example, Representative Wright attacked Thaddeus Stevens, claiming that his advocacy of constitutional amendment was an illegitimate use of power that rightly belonged to the fathers: “Sir, this is a question that calls for our most mature reflection. Yet the patriarchal chairman of the committee, who brought forth this amendment… seemed inclined to treat it as an ordinary resolution of the passing hour.”52 Using “patriarchal” here pejoratively, Wright critiqued Stevens for attempting to “father” the Constitution in a manner he deemed inconsistent with the founders’ original ideals. Such casual treatment of their legacy, as well as an improper appropriation of their role as the fathers of the government, Democrats argued, indicated how poorly prepared the current generation was for making constitutional changes. Representative Lawrence Trimble of Kentucky declared, “While I have some confidence in the ability and capacity of some of the friends on the opposite side [of the House] to make a constitution, yet I prefer the Constitution as made by our fathers eighty years ago.”53 Illinois Representative Samuel Marshall disapproved of the Republican effort to amend the Constitution even more vehemently than Trimble: “I believe, notwithstanding the conceded wisdom, ability, and virtue of this House, that the fathers who framed our glorious Constitution were wiser, better, and nobler than we are.… There seems to be no more regard here for the Constitution and its guarantees, as our fathers made it, than there would be for resolutions in a common caucus or in a town meeting. It is monstrous; it is absurd.”54 Reverdy Johnson even extended the argument to apply to the Thirteenth Amendment, which he considered the first Republican “tinkering” with the fathers’ Constitution. He stated, “I think and have ever thought that slavery is wrong… but am I to quarrel with the men who have thought otherwise, with the Washingtons, with the Jeffersons, and the Madisons who must have entertained a different opinion practically, or at least an opinion that it was not advantageous to have instantaneous emancipation.”55 Contending that the founders had actively supported slavery and, by implication, racial inequality, Johnson both construed the ideologies of the founders as consistent with his partisan interests and reaffirmed their role as national fathers. Who were the mere members of the Thirty-Ninth Congress, Johnson asked, to attempt to change the principles and policies of the nation’s founding fathers?
In fact, congressional Democrats argued, any worthy inheritors of the founders’ legacy would not attempt to tinker with their sacred ideals and texts. True sons of the fathers, Democrats implied, would uphold their political legacy by opposing constitutional change. Representative Trimble declared that he was “opposed to this amendment, and to all kindred amendments, and I have no hesitation in saying… that I expect, while I remain true to myself and to the Constitution of my fathers, which I have so often sworn to support, to continue to oppose the submission of all such amendments to the people.”56 The only true way to protect the national paternal legacy, Democrats such as Trimble declared, was to preserve the original text of the Constitution intact. New Jersey’s Andrew Rogers also declared his love for and commitment to maintaining the fathers’ ideals unchanged.
Sir, it is because I love my country, because I love these States, because I love the grand foundations of liberty which were cemented by the blood of our fathers.… It is because this joint resolution saps the foundations of the principles which induced our fathers to spill their blood upon the battle-fields of the Revolution that I, in my humble capacity… as a Representative… use my voice and my power in behalf of that great constitutional Government… whose foundations were laid broad, strong, and deep in the beginning by George Washington and the other patriots and heroes of the Revolution.57
Although this statement can be read as an example of rhetorical bombast wielded by a minority-party congressman, many other conservative Democrats repeatedly declared in early 1866 that it was the duty of congressmen, as political sons, to preserve, protect, and maintain, and absolutely refrain from innovating or changing the fathers’ institutional legacy.
Occasionally, in defense of their role as conservative sons protecting the fathers’ legacy, Democrats adopted an overtly gendered rhetoric that capitalized on the gendered meaning notably embedded within the rhetorical familial metaphors they were using. For example, Representative Wright lauded those who sought to uphold the Constitution of the fathers, regardless of their party, by complimenting their manhood: “Thanks to the conservative members upon the other side of the House for their manly resistance against… stifling debate upon so momentous a question [the constitutional amendment].”58 Also using the idea of manly virtues to describe his actions and those of his colleagues, Senator Thomas Hendricks of Indiana asserted that those who sought constitutional changes were less manly than the founders and were therefore essentially illegitimate heirs of the fathers: “The men of 1866 are not the men of 1776.”59 Although Democrats declared that Republican attempts to tamper with the original text of the fathers’ Constitution were unmanly and illegitimate, they were even more disturbed by any attempt to legislate racial equality.
Nineteenth-century Democrats had for decades been creating and wielding racist distinctions between whiteness and blackness to define themselves as a political party, determine partisan ideology, and attract constituencies.60 Consistent with their party’s racist ideology, in the Thirty-Ninth Congress many Democrats adopted race-based language both to interpret the founders’ ideologies and to assign fraternal roles in the rhetorical political family. Primarily, they ignored the history of suffrage contraction in the antebellum period, claiming instead that the founders had from the nation’s start deliberately restricted African Americans’ political participation to create a white man’s government. For example, on February 1, 1866, the Kentucky senator Garrett Davis said that African Americans and Native Americans had never been a part of the national polity.
The first or revolutionary Confederation among the colonies, then their Articles of Confederation, then their Declaration of Independence, and then the present Constitution of the United States, were all acts of the white people of the colonies, undertaken and performed by them exclusively for no object or benefit but their own. The negroes or Indians were not parties to them or either of them.… Those results were intended to be and were limited to white people alone.61
Just as conservatives in antebellum constitutional conventions had done, post-war congressional Democrats denied that African Americans had ever, in any degree, participated in electoral politics in America. Davis continued, asserting “that the fundamental, original, and universal principle upon which our government rests, is that it was founded by and for white men; that it has always belonged to and been managed by white men; and that to preserve and administer it now and forever is the right and mission of the white man.”62 The Pennsylvania representative Benjamin Boyer agreed: “The truth is too plain for discussion.… Our fathers… fortified by the bulwarks of the Constitution itself the subjection of the inferior race. No man can read with open eyes and candid mind the Constitution of the United States, as made by our fathers, and fail to see that this Government was intended by its founders to be a white man’s Government.”63
These Democrats insinuated that true sons of the fathers upheld and were loyal to the white political family created by the fathers, and they seemed indignant that Republicans would even think of altering the composition of this family. This indignation was evident in Ohio representative William Finck’s speech on December 21, 1866:
Are the principles of the old Constitution to be abandoned, and the whole character of our system of government changed in order that the white men of eleven States may be disfranchised, and the negro clothed with political rights? Is it possible, sir, that within the limits of our Republic white men will combine to degrade their own race and kindred in order to confer political power into the hands of black men?64
Finck conveniently ignored the fact that the white men of those eleven states had recently made war on the Union explicitly to deny the rights of black men. Furthermore, in proclaiming that white men would lose the franchise if African American men gained the ballot, Finck disregarded the antebellum history indicating that precisely the opposite had occurred. Democrats such as Finck declared that the connections between all white men transcended both history and the recent national schism; whiteness alone forged their political bonds. Therefore the white man’s government must be protected from any incursions by others. As Thomas Hendricks asserted, “I am not in favor of giving the colored man a vote, because I think we should remain a political community of white people.… I want to see the white race kept a white race, and the power in this country without mixture and without an attempt at mixture.”65 Here, Hendricks played the Democrat’s ultimate trump card: miscegenation. Any mingling of voters in the political family, Hendricks insinuated, would lead to the sexual mingling of persons in the literal family.
Postwar congressional Democrats frequently adopted the race-mixing argument, most likely to stir up white Americans’ racial prejudice for partisan gain.66 In so doing, they explicitly conflated sexual activity and political activity. But this argument was not the only way Democrats tied the body to the state. Many also identified gender, rather than race, as the central axis of government. For example, Kentucky representative Aaron Harding swore that the government “was a ‘white man’s Government’ once, I know, and as a ‘white man’s Government’ it had my first love—a love even stronger than a woman’s love.”67 It is unclear what Harding was implying about his own relationship to the state, but by sexualizing loyalty, Harding drew upon his peers’ understandings of masculinity to situate himself, and those committed to a white polity, as men willing to profess their full devotion to the state. Furthermore, within a broader American culture concerned with domesticity, Harding’s declaration that he had rejected woman’s love for love of his country’s racial order was, perhaps, the definitive expression of a masculine commitment to the white political family.
As Democrats used whiteness and gender to patrol the borders of the political family, they used gender and race to reintegrate its straying white members. To reconnect the northern and southern political communities, they adopted a fraternal rhetoric that reconstructed southern white men as the true, if errant, national brothers. As Andrew Rogers of New Jersey argued, now that the war was over, the white men of the two sections should “bind [them]selves together as a band of brothers.”68 Reverdy Johnson declared that “the time had passed when we [the North and the South] were to esteem ourselves as different peoples. Our fathers esteemed us as one. The Constitution deals with us as one.”69 Therefore, he asserted, the best way to deal with the consequences of the rebellion was to treat southern whites as “prodigal sons,” returning to the fraternal Union of their fathers, saying to them, “‘You have wandered away from the household of your fathers; you have seen the error of your ways;… we receive you with open arms and with warm and gushing hearts.” This would be possible because of the common bond between white soldiers: “Look at the conduct of their military men and our military men. How do they meet?… They meet… as brothers.”70 A shared masculine military culture, Johnson asserted, could overcome political or ideological differences between estranged brothers.
Johnson was not the only congressman to invoke the military. As with African American activists, in the wake of the very recent and transformative Civil War, the military experience loomed large in American national political rhetoric. Although many Democrats appropriated this rhetoric to re-create the white male political brotherhood, most preferred not to bring up the recent conflict and so instead turned to the military experience of the American Revolution to reconnect the men of the South and the North. For example, in the February debate, Reverdy Johnson again articulated the martial connection between sections: “We want to be what our fathers were,… going shoulder to shoulder through the perilous conflict of the revolutionary struggle, moistening every field of battle in which they were engaged with their joint blood.… We came out of that struggle as we went in, brothers, animated by an equal love of country.”71 These Democrats undoubtedly did wish they had just lived through a uniting American revolution rather than a divisive civil war. But for them, the joint spilling of blood and the intimate connections between men created by the nation’s founding permanently cemented the fraternal relationship between the sections regardless of any subsequent schism. The Indiana senator Thomas Hendricks demonstrated this, relying on the bonds of revolutionary-era homosocial martial connections to overcome sectionalism. He argued that during the Revolution “the men of every section had mingled… they had dwelt under the same tent together; they had shared the hardships of the field, the dangers upon the rough edge of the battle; their comrades had fallen together and slept in a common grave.”72 Therefore, white southerners and white northerners should return to their original, common political connection. Throughout Congress’s debates on civil and political rights, evoking the masculine military connections between white men in a distant, sanitized Revolution enabled Democrats to avoid uncomfortable references to the more immediate war the brothers had made on each other. It enabled them to reconstruct political relationships on the grounds of common gender identity and rendered southern white brothers safe members of the family politic.
While arguing for a reunification of the white political brotherhood, Democrats also occasionally used gender to challenge Republican visions of the fathers’ legacy. In particular, they contended that any attempt to restrict southerners’ rights was an unmanly violation of fraternal bonds unworthy of political sons. For example, in February 1866, Reverdy Johnson queried his peers: If the southerners were essentially emasculated by their defeat in the Civil War, then why were northern Republicans reluctant to reunite with those impotent brothers? “You have proved yourselves adequate to the duty of defeating them in their mad and… traitorous purpose. And now, having proved your physical manhood, do you doubt your intellectual manhood?”73 If northern Republicans were men enough to defeat their southern brethren in the war, then they were certainly capable of managing them politically when they returned to the Union without resorting to unmanly and illegitimate expansions of fraternity. Like Johnson, Representative John Nicholson of Delaware also challenged the masculinity of his partisan opponents, arguing that if the Republicans desired an immediate enfranchisement of African American men, they should express that purpose openly rather than linking it to congressional representation: “If this be your real object, come out like men and avow it.” Furthermore, he asserted that if Republicans attempted to amend the Constitution without the presence in Congress of the southern brethren, “their conduct must at least be pronounced unmanly and ungenerous.”74 Ultimately, using metaphors of male family connections and gendered critiques of their opponents’ behavior enabled Democrats to justify their conservative policies toward African Americans, to legitimate their liberal stance toward the white South, to appropriate the founders as their ideological and political fathers, and to validate their opposition to amending the Constitution.
We Are Coming Back to the Doctrine of Our Fathers
Like the Democrats in the Thirty-Ninth Congress, Republicans, and occasionally African American petitioners, also used the metaphor of male familial roles to reconstruct political relationships damaged by civil war. Like Democrats, Republicans posited the founders as the fathers, presented themselves as worthy sons, and argued for the return of the nation to political brotherhood. Unlike their colleagues, however, Republicans portrayed the founders as fallible patriarchs who, by their compromises with slavery, had undermined their own egalitarian political ideals and consequently sacrificed a true political brotherhood among all men. Good Republican sons, they argued, would become political fathers themselves and create an equal political family among all men, thereby redeeming the founders’ tainted legacy. To define African American men as equal brothers in this new idealized political community, Republicans appropriated gender to obscure the racial differences antebellum Americans had used to exclude African Americans from the polity.
As they considered amending the Constitution, Republicans could not ignore the fact that they were seeking to rewrite a portion of it by replacing its provision for congressional representation. To justify their right to make such a significant change, they argued that the fathers themselves had been so tainted by slavery they were unable to fully implement their own egalitarian ideals. Although no Republican, save perhaps Charles Sumner, went as far as the radical abolitionist William Lloyd Garrison did when he proclaimed the Constitution “a covenant with death,” many Republicans had nonetheless rejected the founders’ compromises with slavery.75 For example, in January 1866, Illinois representative John Farnsworth placed the blame for the Civil War squarely on the founders’ shoulders: “We have learned by sad experience, that what have been called in these days ‘the compromises of the Constitution’ have proved a Pandora’s box, out of which have come all manner of evils to afflict this country. They have brought on this war. They have produced all of this bloodshed in the struggle through which we have passed for the last four years.”76 Daniel Clark, the senator from New Hampshire, agreed, calling the founders’ compromise with slavery “the sad, the wretched mistake.”77
Despite critiques like this, most Republicans were reluctant to be too critical of the founders. Instead, they solved the problem of the founders’ imperfection by separating the men themselves from their actions. Republicans argued that although the mistaken compromises with slavery were shameful, they did not reflect the fathers’ real intentions, which were for a nation in which “all men were created equal.” For example, although Kansas senator Samuel Pomeroy bemoaned the fathers’ compromises with slavery, he took solace in the fact that they did not explicitly use the word “slavery” in the Constitution’s text: “Slavery… got a recognition, I am sorry to say, in the Constitution itself. The fathers gave it a place there, but thank God, they left it without a name.”78 Even though they had not explicitly named slavery in the text of the Constitution, the founders had nevertheless failed their descendants, Republicans asserted. Republican sons, Charles Sumner said, should, “while confessing sorrowfully [the founders’] inconsistency in recognizing slavery, and throwing over their shame the mantle which the son of Noah threw over his father… reject every argument or inference on this account against the true idea of a Republic, which is none other than where all citizens have an equal voice in the Government.”79 The Constitution, these politicians claimed, was a flawed text badly in need of revision because it did not represent the fathers’ real ideals.
The founders’ true legacy, Republicans argued, was most clearly expressed in one of their earlier political treatises—the Declaration of Independence. Congressional Republicans used the Declaration as evidence that in the Constitution the fathers not only had compromised with slavery but had compromised their own original intentions. In the House, Thaddeus Stevens argued, “Our fathers made the Declaration of Independence… [that] they intended to be the foundation of our Government. If they had been able to base their Constitution on the principles of that Declaration it would have needed no amendment during all time… [but] an institution hot from hell appeared among them.… It obstructed their movements and all their actions, and precluded them from carrying out their own principles in the organic law of this Union.”80 In this argument, Republicans were supported by African American activists. For example, one group of “colored petitioners, residing in the State of Georgia,” petitioned for the right of suffrage by declaring their faith in that “ever-memorable sentiment contained in the ‘Declaration of Independence,’ viz. ‘that all men are created equal; that they are endowed by their Creator with certain inalienable rights; among these are life, liberty, and the pursuit of happiness.”81 Looking to the Declaration rather than the Constitution not only relieved the Republicans of the fathers’ uncomfortable compromises with slavery but also allowed them to refute the Democratic claim that the founders had deliberately created a political community bounded by whiteness. In this, Pennsylvania representative Glenni Scofield declared, “We are coming back to the doctrine of our fathers.… In the Continental Congress they asserted that ‘all men are created free and equal.’… Both the precept and practice of our fathers refute the allegation that this is exclusively a white man’s Government.”82
In fact, some Republicans argued, it was not the founders’ connections to slavery itself that made the Constitution suspect; rather, the problem lay with the way that people in subsequent generations had used the document to support slavery. This Republican version of history allowed representatives to separate interpretations of the Constitution from the document itself. For example, Charles Sumner shifted the blame for the current constitutional crisis to a disjuncture between antebellum constitutional interpretation and the fathers’ true ideals: “For generations the Constitution has been interpreted for Slavery. From this time forward it must be interpreted, in harmony with the Declaration of Independence, so that Human Rights shall always prevail. The promises of the Fathers must be sacredly fulfilled.… It is nothing less than the Emancipation of the Constitution itself.”83 African American petitioners also adopted this argument. When William Nesbit, Joseph C. Bustill, and William D. Forten—prominent African American activists representing the Pennsylvania State Equal Rights League—sent a memorial to Congress, they noted that the Constitution did not contain any reference to race. They argued that Congress, by enfranchising and protecting African Americans’ civil rights, would do “justice to the Constitution which the Fathers of the Republic steadily refused to disgrace by incorporating into it the word white, or any other distinctive feature which would deprive any portion of civilized humanity of finding protection under its broad and ample aegis.”84 By depicting the founders as well-intentioned, yet fallible, egalitarian idealists, African American activists and Republicans sanctified their own policies with the fathers’ approval. This Republican emancipation of the Constitution would fulfill the founders’ original ideals and serve as a redemptive mission for their sons, who would essentially save the fathers from themselves.
Republicans argued that as political sons they had a duty to emancipate the Constitution by realigning it with the Declaration of Independence. Thaddeus Stevens articulated this explicitly in the February debate: “The time has come when we can make the Constitution what our fathers desired to make it.… Now… when the rebels have lifted their parricidal hands against the country… shall we so recall this desire of our fathers as to place [the Constitution] upon the broad foundation of human rights?”85 His radical colleague Sumner agreed, reiterating his conviction that it was the duty of the congressional sons to redeem the principles of the Declaration from the failure of the fathers. “Our fathers solemnly announced the Equal Rights of all men,” he said. “Looking at their Declaration now, it is chiefly memorable for the promises it then made.… And now the moment has come when these vows must be fulfilled to the letter. In securing Equal Rights of the freedman… we shall perform these early promises of the Fathers.”86 Congressmen, Sumner claimed, must adopt the “masculine sense and exalted love of liberty” to complete the work of the fathers and create a polity where all men would be equal.87
Through this explicitly gendered argument, Sumner implicitly challenged Republicans to stand up and be men. And he was not alone in issuing this challenge. Nesbit, Bustill, and Forten’s memorial also asked congressmen to look to their “calm and honest judgement, and the warm and manly feelings of [their] hearts” and do justice to the nation’s African American population.88 Some Republicans responded to these challenges by defining themselves as the next generation of political fathers, rather than taking the subordinate role of sons of the fallible founders. They drew direct parallels between the early days of Reconstruction and the nation’s founding. Illinois Representative Henry Bromwell declared that “this Congress sits, for all practical purposes, as a convention revising the Constitution.”89 If the Congress was a constitutional convention, then its members were surely the new founding fathers. Senator Samuel Pomeroy made the connection directly, appropriating political fatherhood for himself and his colleagues: “I think I know and feel somewhat of the responsibilities of this hour. These responsibilities are upon us. They cannot be laid aside or transferred to another. The fathers have gone to their rewards, and posterity sleeps. We, the men of to-day, must make our triumph secure or lose all, and plant the path of coming generations with thorns. We must do it!”90 Arguing even more explicitly that Republicans needed to become political fathers, Sumner asserted that “you cannot consent that the child Emancipation, born of your breath, shall be surrendered to the custody of the enemies. Take it in your arms, I entreat you, and nurse it into strength.”91 As political fathers themselves, Republicans would integrate the nation’s African American brothers into what the Nevada Republican James Nye called “the family of American citizenship.”92
In their roles as redeeming sons and as Reconstruction’s political fathers, Republicans used gendered language to construct African American men as political brothers. Like Democrats, they referenced the military fraternity to construct this brotherhood, but unlike Democrats they construed the Civil War as the site where fraternal bonds were forged.93 When African American men offered their lives for the Union, Radical Republicans argued, they earned both their manhood and the ballot—the dual badges of membership in the political family.94 As the Massachusetts radical George S. Boutwell asserted, African American soldiers had “stood in the place of our sons and brothers and friends. They have fallen in defense of this country. They have earned the right to share in the Government.”95 As brothers in arms fighting battles in place of white sons, brothers, and friends, African American men had in war performed the martial role of those male family members, and thereby, Boutwell implied, joined the political family of American men. Emphasizing black men’s military service in this way enabled Republicans to distinguish loyal black men from white southern traitors who had both attempted parricide and rejected their fraternal duty to the Union. For example, Representative George Julian of Indiana argued that African American men “have done their full share in saving the nation’s life. Many of them went into the Army as the substitutes of white ruffians and vagabonds who daily ‘damn the nigger,’ and whose unprofitable lives were saved by the black column which stood between them and the bullets of the rebels.… It would be a very mean mockery of justice to withhold the ballot from loyal negroes who… furnished the Government with their full share of men.”96 Like Julian, James Wilson of Iowa asserted that African American men “took the risks which justly belonged to the white residents,” and consequently “many of them are buried with their white comrades on scores of battle-fields.”97 Battle rendered African American men substitute brothers and members of the military community, but it was in death that a permanent fraternal bond was forged between men in shared soldiers’ graves. Thus, in the reconstructed political family shaped by the fathers’ fundamental texts and implemented by loyal Republican sons, African American men’s service for the family, service that Charles Sumner called “a filial throb for the Republic,” transformed black men from political and social outsiders to honored brothers.98
African American petitioners also emphasized their military service to claim fraternal membership in the family politic. A suffrage petition from a group of “colored citizens of the District of Columbia” also noted that African Americans served the state as soldiers when their white brethren did not. The petition reminded Congress “that out of a population [in Washington, D.C.] of less than 15,000, we have contributed three full regiments, over 3500 enlisted men, while the white citizens… of a population of upwards of 60,000 sent only about 1500 enlisted men for the support of the Union.” Thus, the “loyal” black men in the District had earned “the political rights enjoyed by every other man.”99 Petitioners from Georgia likewise emphasized African American men’s Civil War service in their request for the franchise. “As many of our people of color,” the petitioners said, “have been willing at the point of the Bayonet—and at the cannon’s mouth, to defend the blessed Government under which we live,” therefore, congressmen should “if it is not incompatible with your sense of justice” grant African American men the “right of the elective franchise.”100 Of all the petitions from African Americans to the Thirty-Ninth Congress, that sent by Nesbit, Bustill, and Forten expressed the link between military service, the duplicity of white Confederates, and the ballot most directly:
Go to Port Hudson and count the slaughtered of our race and bid them tell you if they, whose arms are now palsied in death, ever drew a sword, sped a bullet or thrust a bayonet at the nation’s life. Call back the spirits of the murdered heroes of Milliken’s Bend, Olustee and Fort Wagner and the affirmation that they went to the presence of their God in defence of liberty, equality, the Constitution and the Union, and perfect enfranchisement of their race, will challenge a denial.… Gentlemen, the voice of God invites you to do justice to the brave black men, who have so nobly proven their fitness to exercise the franchise.101
For God, these activists declared, had “render[ed] every child of His creation conscious of his right to liberty, and equality with his brother.”102 Identifying African American men as soldiers serving in defense of liberty and using the language of family to define the political relationship between men, African American petitioners, like congressional Republicans, wielded gender to claim their own political rights and to demand that Congress recognize those rights. For without the ballot, the Washington petitioners argued, African Americans would remain enslaved. This “possession of only a partial liberty, makes us the more keenly sensible to the injustice of withholding those other rights which belong to a perfect manhood.”103
As they considered Senate Bill 1, House Bill 1, Senate Bill 61, and most particularly House Resolution 51, the first proposal to amend the Constitution’s representation provision and the basis of what would ultimately become section 2 of the Fourteenth Amendment, members of the Thirty-Ninth Congress outlined the terms of representation debate for the remainder of the session. Deprived of a clear precedent by the inconsistencies between the behavior of the founders and their foundational texts in relation to slavery, partisans in Congress had to develop their own ideological principles upon which to base a new formula for representation. Not surprisingly, each party advocated a solution to the representation problem that would benefit its own particular interests. Republicans, fearful that losing a congressional majority would diminish their party’s power and derail Reconstruction, posited black men’s enfranchisement as the solution, envisioning them as brothers in arms, literally and figuratively. Democrats, frustrated with the subordinate minority role they had been relegated to by the war and seeing potential electoral gains if the South returned to Congress with full representation, preached compassion for the white southern brethren. To legitimate these conflicting policies and cloak them with an aura of power, each party turned to the fathers, claiming that its own particular approach best represented the true legacy of the revolutionary paternity. Interpreting the fathers as supportive of their policies enabled partisans not only to lend historical legitimacy to their own ideas but also to rescue the founders from themselves. If the true legacy of the founders was not the problematic Three-Fifths Compromise but rather the policies advocated by either Republicans or Democrats, then the founding fathers themselves could be reconstructed and cleansed of the taint of the failure that had contributed to the Civil War.
By appropriating familial metaphors for political organization and emphasizing the fraternal connection between men in the political community, partisans in Congress also introduced gender into the debate on representation, used masculinity to redefine political relationships among states and peoples in the postwar nation, and identified the public as a male political family. At a moment when national political relationships were in flux, Congress adopted what it understood to be a natural category of social organization, the family, to reconstruct those relationships. Thus, ultimately, within the family politic—defined by African American petitioners, Republicans, and Democrats alike as a masculine political community—there could be no room for mothers, daughters, or sisters.