NY Review of Books, February 25, 2021 issue
The Case for a Third Reconstruction
by Manisha Sinha
Since the election of Joe Biden to the presidency, it is clear that our
democracy is at a turning point. The first order of business of the
Biden-Harris administration will necessarily be to undo the damage done
by the Trump regime’s criminal incompetence and assault on our
democratic institutions over the past four years. The Biden White House
has proceeded to do that at a rapid clip, with new appointments to
federal posts and a stream of executive orders designed to restore faith
in government. President Biden is fond of saying that our country is
facing a series of grave crises—the coronavirus pandemic, climate
change, systemic racism, and economic inequality—but perhaps the biggest
issue he will have to confront is the political crisis caused by the
failed attempt to overturn the results of the presidential election.
American democracy is once again at a crossroads, as it was during the
era of the Civil War and Reconstruction, the postwar period when the
former Confederate states were readmitted to the Union. Like the
secessionist slaveholders who would break the republic rather than
accept the election of an antislavery president, Trump and his enablers
tried to disrupt the electoral process rather than accept his decisive
defeat in the election. One of the main inciters of the failed Capitol
Hill putsch, Senator Josh Hawley, Republican of Missouri, is reminiscent
of another politician from that state: the rabidly proslavery David
Atchison, whose “Border Ruffians” regularly stole elections in Kansas in
the 1850s through a campaign of terror and intimidation. “Bleeding
Kansas” was a dress rehearsal for the Civil War that came soon after.
It is not a coincidence that the Capitol Hill rioters carried the battle
flag of the Confederacy. The last large-scale instances of domestic
insurrection in American history were the slaveholders’ rebellion of
1861 and the racist Draft Riots of 1863 in New York City. Both were
quelled by the armed might of the federal government.
The history of Reconstruction reveals that moments of crisis can also
provide opportunities to strengthen our experiment in democracy. With a
Democratic-controlled Congress, the new administration has just such a
chance to inaugurate a much needed “third reconstruction” of American
democracy. Trump’s “Big Lie” parroted by large sections of the
Republican Party and his attempts to interfere with the certifying of
votes in several states expose how vulnerable our complicated electoral
system is to illegal meddling. During the original Reconstruction, the
republic rid itself of another faithless president, Andrew Johnson. As I
have argued elsewhere, Trump’s true antecedent is not the oft-compared
Andrew Jackson, who threatened to hang secessionists, but Andrew
Johnson, who humored traitors and peddled racial bigotry. Like Johnson,
Trump and his followers are fond of Confederate generals and their rebel
rag of treason.
Johnson threatened the hard-won gains of the Civil War by opposing the
rights of freed people in the South and encouraging violent resistance
to emancipation by former Confederates. And he has the dishonor of
becoming the first president impeached in American history, though his
conviction in the Senate fell short by just one vote. Trump now has the
dishonor of becoming the first president in American history to be
impeached twice.
Union soldiers guarding the premises of a former slave dealer,
Alexandria, Virginia, 1865
Universal History Archive/Universal Images Group via Getty Images
Occupying Union soldiers guarding the premises of former slave dealers,
Alexandria, Virginia, circa 1865
The Reconstruction Congress enacted the first civil rights laws in the
nation’s history and expanded the role of the federal government in
protecting the rights of citizens. Reconstruction-era constitutional
amendments abolished slavery, established national birthright
citizenship (which Trump imagined he could overturn through an executive
order), decreed equality before the law for all American citizens (an
ideal we still struggle to achieve), and enacted adult manhood suffrage
regardless of race or previous condition of servitude. Historians often
refer to the far-reaching political and constitutional changes of the
first Reconstruction as “the second American Revolution” or “the second
founding” of the American republic, even though its reforms still
excluded women. Since then, disfranchised groups, including women, have
successfully invoked “the equal protection of the laws” of the
Fourteenth Amendment to establish the right to privacy, to bar
discrimination on the basis of sex, and more recently, to enshrine full
marriage equality.
Reconstruction also provides us with a roadmap for how to deal with
racist domestic terrorism, which now looms as the greatest danger to
American democracy. The last time in US history violent white mobs
systematically disrupted elections, invaded government buildings, and
attacked democratically elected governments was during Reconstruction.
White supremacist groups like the Ku Klux Klan, the Knights of the White
Camelia, White Liners, the White League, and the Red Shirts in the
Carolinas (a precursor paramilitary organization to the Nazi Brownshirts
and Mussolini’s Blackshirts), assassinated, assaulted, and intimidated
black voters and Reconstruction politicians. Periodic riots and
massacres in the postwar South upended the rule of law and democracy
itself by overturning interracial state governments. Small wonder that
Hitler bemoaned the defeat of the Confederacy and held up the Jim Crow
South, as well as the violent dispossession of Native Americans in the
West, as historical role models for the Third Reich.
Above all, the history of Reconstruction demonstrates the imperative to
bring the full weight of the law to bear upon those attempting to
overthrow democratic government by terrorist means. Initially, President
Ulysses S. Grant and Congress acted forcefully, establishing the
Department of Justice and passing the three Enforcement Acts of 1870 and
1871 that contained the first Ku Klux Klan. The law was initially
designed to protect Southern black voters from violent intimidation.
Hundreds of African Americans testified before a congressional committee
to the white supremacist violence to which they were subjected in the
South. The second Enforcement Act of 1871 (also known as the Ku Klux
Klan Act) eventually activated federal legal intervention targeting the
Klan in areas like upcountry South Carolina, which Grant declared to be
in a state of insurrection and subject to martial law. Under a plan
devised by Attorney General Amos Akerman, hundreds of Klan members
confessed and were arrested, putting an end to Klan violence in that state.
A segregationist rally at the state capitol of Little Rock, Arkansas, 1959
John T. Bledsoe/Universal History Archive/Getty Images
A segregationist rally at the state capitol of Little Rock, Arkansas,
protesting the admission of the Little Rock Nine to the Central High
School, August 20, 1959
To this end, the Biden-Harris administration has taken a good first step
in announcing a comprehensive plan to combat domestic terrorism, which
the Department of Homeland Security has identified as the greatest
threat to national security. But the Republican Party has shown little
political will or moral fortitude to hold Trump or its most violent and
conspiracy laden members to account. First, former Vice President Mike
Pence and Trump’s handpicked cabinet of mostly “acting” secretaries
refused to invoke the Twenty-fifth Amendment to remove him from office.
A few of his appointees tried to distance themselves from the unsavory
taint of sedition by simply resigning their posts hours before the end
of his four-year-long carnage. And now, most Republicans have closed
ranks—challenging the constitutionality of Trump’s second impeachment
before the trial even begins.
The Democratic majority in Congress must therefore act on its own to
ensure accountability for those who brazenly attempted to disrupt the
counting of the Electoral College votes and lent support for the mob
that threatened to assassinate elected representatives. Members of
Congress who challenged Biden’s lawful and fair election should be
censured. Those who aided and abetted the violent invasion of the
Capitol must be expelled and barred from office under the Fourteenth
Amendment; its third section explicitly prohibits from holding office
those who violate their oath to uphold the US Constitution.
The fact that Congress has not invoked the third section of the
Fourteenth Amendment in recent history should be no bar to its
enforcement. Extraordinary times demand extraordinary measures, and we
cannot safeguard our democracy simply by pious condemnation. The
prohibition should be applied to Trump as well as to all complicit
officeholders, as the eminent historian Eric Foner and others have argued.
The Fourteenth Amendment ban was designed to prevent unrepentant
Confederates from returning to exploit the democratic system their
rebellion had sought to overturn. It can be activated without specific
charges by a simple majority in both houses of Congress, but for
clarity, our elected representatives should formally indict those who
incited and participated in sedition against the government of the
United States. Those so barred from office-holding can be pardoned only
by a two-thirds vote of Congress.
The language of Section 3 of the Fourteenth Amendment is unambiguous,
and it would be difficult for even the Trump-stacked judiciary to get
around it. The Reconstruction congressmen who framed it clearly meant to
guard against future domestic insurrections as they witnessed the
resurgence of white terrorism in the South after the Civil War. For
those not familiar with the words of this section, it is worth reading
carefully:
No person shall be a Senator or Representative in Congress, or
elector of President and Vice President, or hold any office, civil or
military, under the United States, or under any State, who, having
previously taken an oath, as a member of Congress, or as an officer of
the United States, or as a member of any State legislature, or as an
executive or judicial officer of any State, to support the Constitution
of the United States, shall have engaged in insurrection or rebellion
against the same, or given aid or comfort to the enemies thereof. But
Congress may by a vote of two-thirds of each House, remove such disability.
Accountability must percolate down to the state and local levels where
some officials have betrayed their oaths of office in attempting to
overturn the result of the presidential election, and some have
additionally encouraged the violent attack on Congress. State attorney
generals and law enforcement officers who facilitated or participated in
the riot should be removed from office immediately and prosecuted to the
fullest extent of the law. All rioters who used violence to breach the
Capitol should be arrested and prosecuted under the Enforcement Acts. If
we do not prosecute the insurrectionists, we will be derogating from
equal justice before the law. Armed and dangerous right-wing extremists
would simply be incentivized to resort to violence again. To uphold the
rule of law exposes the empty rhetoric of “law and order,” which really
only means might makes right. That same rhetoric led to this episode of
brutal lawlessness that left over a hundred police officers seriously
wounded and one dead.
The end of Reconstruction illustrates that the lack of political will to
hold domestic terrorists accountable can be far too costly for American
democracy. If secession was the counterrevolution of slavery, the
overthrow of Reconstruction was the counterrevolution of white
supremacy. By the end of Reconstruction, many of those convicted went
scot-free, and white terrorism regrouped under new names to launch a
systematic campaign to overthrow the Reconstruction state and local
governments in the South. The Grant administration, beset by corruption
scandals and waning Northern support, dropped its rigorous prosecution
of Southern white terrorist tactics.
In the presidential election of 1876, these groups successfully
disrupted polling, using violence to intimidate black voters. Contested
electoral returns from three southern states, Louisiana, Florida, and
South Carolina, led to the creation of an Election Commission to decide
which candidate should get these three states’ electoral votes. The
resulting Compromise of 1877 allowed the withdrawal of federal troops
from the South in return for awarding the presidency to the Republican
candidate, Rutherford B. Hayes. It signaled the end of Reconstruction
and the beginning of nearly a century of racial segregation, lynching,
terrorism, disenfranchisement, and economic and legal servitude for
African Americans. It is hardly fathomable that Ted Cruz recently lauded
this misbegotten bargain that resulted in a hundred-year travesty of
justice. The fact that all the states whose electoral votes Senator Cruz
contested this January had in fact certified their votes, something that
had not occurred in the 1876 election, does not seem to have bothered
him either.
Not until the Second Reconstruction of American democracy, as civil
rights activists dubbed it, nearly a century later, was the promise of
the first realized. The memory of the first Reconstruction was vivid in
the minds of Southern black people who participated in the modern
African-American struggle for equality and citizenship. Thanks to the
Reconstruction amendments, Dr. Martin Luther King Jr. could proclaim
that the Constitution was on the side of disenfranchised Southern black
citizens. New federal laws like the Civil Rights Act of 1964 ended Jim
Crow and overthrew a century of conservative Supreme Court decisions
that had weakened Reconstruction laws and amendments.
Civil rights demonstrators holding placards, 1963
Pictorial Parade/Archive Photos/Getty Images
Civil rights demonstrators holding placards referring to the bombing of
the 16th Street Baptist Church in Birmingham, Alabama, by white
supremacists, Washington, D.C., US, September 22, 1963
The results of the civil rights Reconstruction were contested by the
“Southern strategy” of the Nixon Republican Party, which increasingly
encouraged white resistance to desegregation and black voting rights.
The gutting of the Voting Rights Act of 1965 by a conservative majority
in the Supreme Court in 2013 and Republicans’ modern-day voter
suppression techniques and gerrymandering of political districts to
ensure minority rule must now be combatted by new federal laws to
protect the right to vote. These underhanded methods resemble the
literacy tests, the forced recitation of the Constitution before voting,
the “grandfather” voting rule (you could vote only if your grandfather
had voted), and the poll taxes that Southern states devised to
disenfranchise African Americans during the Jim Crow era. For example,
the badly GOP-gerrymandered Wisconsin state legislature ensured that in
2010 Democrats who won 54 percent of the vote in the state received only
36 percent of assembly seats. In Georgia, after its debacle in the
recent elections, the state Republican Party is devising new restrictive
voting laws.
Today, a third Reconstruction must once again close down these sleazy
tactics that try to skirt federal laws and hobble American democracy.
Congress can uphold both election integrity and democratic governance,
first with a variety of short-term measures and then by working to pass
constitutional amendments to preserve the sanctity of elections. It must
pass the John Lewis Voting Rights Act and declare Election Day a
national holiday or hold elections on a Sunday as many democracies do to
facilitate voting. It should consider an overhaul of our election
process, including the removal of big-money influence and the
establishment of an independent national Election Commission to monitor
elections and verify results.
Republicans leaders like Mitch McConnell and Kevin McCarthy briefly
condemned Trump’s incitement of the Capitol Hill mob only after major
corporations moved to withdraw funding from candidates who had been
complicit. But the rule of law, and not big money, should determine our
politics. Federal laws would preempt new measures already being
contemplated by Republicans at state and local levels to hinder voting.
In the long run, we will need a constitutional amendment to abolish the
Electoral College, which has become an antidemocratic relic. If we ended
the indirect election of senators in the Progressive era, we can do the
same for presidential elections.
In Congress, we should dispense with arcane weapons of minority rule
like the Senate filibuster, which enables individual senators to talk a
bill to death or block legislation merely by threatening to do so—and
was used, most notoriously, by Southern senators to protect Jim Crow in
the 1950s and 1960s. In addition, Congress must address the fresh
proposals for the statehood of Washington, D.C., and Puerto Rico; this
measure, guaranteeing millions of currently disenfranchised American
citizens equal representation in the federal government, is long
overdue. The constitutional provision to ensure a republican form of
government was often invoked during the first Reconstruction, and
Congress must act on it today.
Already the forces of reaction and rebellion are regrouping with the
blessing of the disgraced Trump and a majority of the Republican Party
leadership. It remains to be seen how many Republican senators will
continue to condone Trump’s attempted coup during the impending
impeachment trial. A third Reconstruction would secure our democratic
republic against that future threat. The onetime party of Lincoln has
steadily devolved into an incubator of openly seditious
conspiracy-mongers like Representatives Paul Gosar, Alan Biggs, Louie
Gohmert, Marjorie Taylor Greene, and Lauren Boebert. That a major
political party in a two-party system cannot be trusted with the levers
of political power portends a major crisis in American democracy. As the
abolitionist Frederick Douglass once told Andrew Johnson, we are again
in danger of empowering “the enemies” rather than “the friends” of
democracy.
Racism remains the fundamental flaw at the heart of the American
republic, deployed to create divisions in the body politic, stymie
progressive policies, and undermine democratic majority rule. Instead of
working to purge itself of the assorted neo-Nazis, neo-Confederates, and
white supremacists of Trump’s mob, the Republican Party is—with a
pitifully few exceptions—seeking to return to business as usual with no
reckoning for the extremists in its midst. As I watched the Capitol
police officer Eugene Goodman fend off the violent mob and then
accompany Kamala Harris to take her oath of office as vice president, I
recalled Abraham Lincoln’s prophetic words:
And then, there will be some black men who can remember that, with
silent tongue, and clenched teeth, and steady eye, and well-poised
bayonet, they have helped mankind on to this great consummation; while,
I fear, there will be some white ones, unable to forget that, with
malignant heart, and deceitful speech, they strove to hinder it.
Manisha Sinha, a professor and the Draper Chair in American History at
the University of Connecticut, is the author of The Counterrevolution of
Slavery: Politics and Ideology in Antebellum South Carolina (2000) and
The Slave’s Cause: A History of Abolition (2016). (March 2018)
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