B ROOK T HOMAS Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement I. On the fourth anniversary of the “Gettysburg Address,” Charles Sumner delivered a speech in New York called, “Are We a Nation? ” For him, the United States could not truly be called a nation until it provided equal political and civil rights for all of its citizens, including African Americans. Citing Lincoln’s famous address, which he calls, “the most touching speech of all history” (62), Sumner urges the country to incorporate the Declaration of Independence’s ideal of equality into the Constitution. “Liberty is won: Equality must be won also. In England there is Liberty without Equality; in France Equality without Liberty. The two together must be ours” (63). Five years later, arguing for a new Civil Rights Bill to supplement those of 1866 and 1870, Sumner again enlists Lincoln in his attempt to ensure equal rights for African Americans. “According to Lincoln,” Sumner argues, “the great issue of the war was Human Equality” (259). Quoting directly from the “Gettysburg Address,” he appropriates Lincoln, asking Congress to pass his bill as a way of finishing the work the “prophet-President, soon to be a martyr,” dedicated his life to achieving (226). In evoking Lincoln for the cause of civil rights, Sumner anticipated Martin Luther King, Jr., who symbolically staged his 1963 “I Have a Dream Speech” on the steps of the Lincoln Memorial. Indeed, a post-civil-rightsmovement generation has become accustomed to reading the “Gettysburg Address” the same way Sumner urges us to read it. Although never mentioned, slavery seems silently present. Reminding the nation that it was “conceived in liberty” and dedicated to the proposition that “All men are created equal,” Lincoln seems, to our ears, to be calling attention to the fact that those not conceived in liberty were denied that foundational promise. But, if the image of Lincoln as the Great Emancipator dominates people’s imaginations today, there is a darker counter image. For instance, soon after the Civil War a book was published called American Bastille. It consists of case studies of a number of US citizens whose civil liberties were allegedly violated by Lincoln during the war. Its introduction traces the history of civil liberties back to the Magna Charta, claiming that the contest for over five centuries was between the “sovereign and people, the one for royal prerogative, the other for the rights of per- 216 B ROOK T HOMAS sonal liberty” (xxx). With the formation of the American republic, in which the people became sovereign, this age old conflict seemed to resolve itself. Nonetheless, the author claims, it reappeared with the election of Lincoln, who instituted a regime of military despotism that gave the government the power of arbitrary arrests. “There was a time when the proudest appellation a man could bear was that of American citizen. ‘I am an American citizen,’ implied liberty and safety - protection and justice. Then, the national shield was, indeed, a shield with arms - a shield which defended the citizen against every act of tyranny and usurpation - a shield which guarded him on land and sea, at home and abroad” (xxxi). Lincoln, however, turned the shield into the service of military rule, trampling on the liberties of citizens. In doing so he defamed the national symbol of the liberty bell. For instance, his Secretary of State William Seward is quoted telling an English lord: “My lord, I can touch a bell on my right hand, and order the arrest of a citizen of Ohio; I can touch a bell again, and order the imprisonment of a citizen of New York; and no power on earth, except that of the President, can release them. Can the Queen of England do so much” (xiii)? 1 Not as popular as the image of Lincoln as Great Emancipator, the image of him as military despot persists. Edmund Wilson in Patriotic Gore called Lincoln a dictator and compared him to Bismark and Lenin. Wilson’s criticism inspired fictional accounts by Gore Vidal and William Safire. More recently, libertarians have taken up the banner and criticized Lincoln as a despot who created an authoritarian centralized state (Adams, Hummel, DiLorenzo). There are even those like Edward S. Corwin and Clinton Rossiter, who admit that Lincoln was a constitutional dictator, but who praise him for being one. This debate about Lincoln is, I will argue, more than a debate about a historical personality. It is symptomatic of the tensions that arose (and continue to arise) when people like Lincoln and Sumner try to realize the twin goals of liberty and equality. For those familiar with the work of Jacques Derrida, those tensions are signalled by the fact that Sumner called the legislation he was sponsoring the “Supplementary Civil Rights Bill.” If Sumner felt that, according to a logic of both/ and, the nation could add the goal of civil equality onto the existing one of civil liberty, Derrida’s logic of the supplement reminds us that to add something to an existing body is to transform it. This does not mean that liberty and equality exist in a relationship of either/ or, but it does mean that the Constitution could not be amended to ensure equal civil rights without altering the way in which it defined civil liberties. 1 The statement attributed to Seward is most likely a fabrication, but it was repeated frequently by well respected figures. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 217 Indeed, the Civil War not only altered the definitions of both civil liberties and civil rights, it generated a distinction between the two. A recent textbook offers a standard contemporary understanding of their differences. “Civil liberties refer to the freedoms that individuals enjoy and that governments cannot invade. Civil rights refer to the powers and privileges that belong to us by virtue of our status as citizens” (Miroff 433). This distinction is helpful, but there are obvious complications. For instance, in the US almost all of our civil liberties derive from the Bill of Rights, which would seem to imply that rights and liberties blend into one another. Thus, if we include as civil rights the “privileges that belong to us by virtue of our status as citizens,” many of our civil liberties are also civil rights. In fact, prior to the Civil War “civil liberties” and “civil rights” were used interchangeably. For instance, when people criticized Lincoln’s crackdown on what today we would call civil liberties, such as freedom of speech and freedom of the press, they often protested his violation of civil rights, even if some of them opposed equal - and at times any - rights for blacks. What generated our present distinction was ratification of the Fourteenth Amendment and passage of various civil rights acts designed to protect the rights of freedmen. As a result, “civil rights” began to be distinguished from the “civil liberties” guaranteed by the Bill of Rights. 2 The purpose of this essay is twofold. First, I want to look closely at two famous debates about civil liberties during the Civil War and its immediate aftermath to illustrate the pressure war places on civil liberties in liberal democracies. That pressure is widely acknowledged and has generated debates that are still very much with us. Nonetheless, people engaged in them can benefit from a close look at the language that Lincoln used to defend his actions in the most notorious civil liberties dispute during the war as well as the language used by the Supreme Court in the most important civil liberties case to come out of the war. Divorced from its historical context, that language might seem to embody different positions in a timeless debate between the demands of national security and the ideal of civil liberty. My second goal is to place that debate in historical context by showing how the conflict over civil liberties during the Civil War affected debates about granting civil rights to African Americans and vice versa. To learn, as we will, that many of the most vocal defenders of civil rights condoned Lincoln’s crackdown on civil liberties while many of 2 At that time, civil rights were also distinguished from political rights, with political rights having to do with rights in relation to the government, such as the right to vote, and civil rights having to do with rights within civil society. But in the wake of the civil rights movement of the twentieth century, which was concerned with voter rights as well as others, the distinction between political and civil rights disappeared. For more on this distinction, see the Foreword to this volume. 218 B ROOK T HOMAS the harshest critics of his policies on civil liberties opposed civil rights will, I hope, provide a perspective on today’s debates that has too often been forgotten. II. Various suspensions of civil liberties coincided with the outbreak of the Civil War. In April, 1861, because of interference with the movement of troops and supplies, Lincoln suspended habeas corpus along the communication line between Philadelphia and Washington. In Ex parte Merryman Chief Justice Taney disagreed with the administration and granted a writ of habeas corpus to a Baltimore resident with Southern sympathies who had been arrested by military authorities. In a direct rebuke to the President, he also ruled that the Constitution authorized only Congress to suspend habeas corpus. The administration ignored Taney’s decision, but the question of who had the power to suspend habeas corpus was revisited September 24, 1862. Worried that “the ordinary processes of law” were not adequate” to deal with “disloyal persons” intent on hindering the military draft, Lincoln issued an executive order that created the new offenses of “discouraging enlistments” and “disloyal practices” while requiring such offenders and those who gave “aid and comfort to the rebels” to be subject to martial law, liable to trial and punishment by courts martial and military commissions without possibility of writ of habeas corpus. The issue seemed to be resolved March 3, 1863, when Congress authorized the President, during the rebellion, to suspend habeas corpus. But it also required the Secretaries of State and War to furnish Circuit and District judges lists of all citizens of loyal states held as political prisoners. If a grand jury had been adjourned without finding a indictment, the prisoner could be freed upon taking an oath of allegiance. This requirement was frequently ignored. It is by no means surprising that this controversy occurred in wartime. Wars inevitably test the protection of civil liberties in liberal democracies. If in Melville’s Billy Budd, Captain Vere argues that the Mutiny Act, with its lack of toleration for civil liberties, is “War’s child” and “Takes after the father” (112), William E. Rappard, writing on The Crisis of Democracy in 1938, claimed, “Democracy is a child of peace and cannot live apart from its mother” (265). As Supreme Court Justice Rutledge Wiley put it in 1944, “War is a contradiction of all that democracy implies. War is not and cannot be democratic” (379). World War I, for instance, led to some of the most famous free speech cases in the nation’s history. World War II forced the Supreme Court to decide if Japanese-American citizens could be interned in Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 219 the name of national security. The Vietnam War tested the limits of protest, and the so-called “War against Terrorism” has generated a number of controversies about civil liberties. Even so, the Civil War raised special questions. Lincoln felt that it was imperative to operate under the fiction that the Union still existed, meaning that it continued to include the very territory waging war against its troops. If so, could a country, blockade its own ports? Could a part of the United States be considered occupied territory? These questions were part of a larger one about the status of the rebellious states themselves. What rights did the rebels have? A common refrain in the North was that they had no rights that the government had to respect, an obvious allusion to Justice Taney’s claim in Dred Scott that African Americans had no rights that a white man had to respect. The more restrained response that they still had rights under the US Constitution invited the not so restrained objection that they should, therefore, be tried for treason. Indeed, the war saw a change in the law of treason (Randall). Northerners as well as Southerners were suspected of treason. Lincoln’s means of dealing with them sparked protests, especially from Democrats. Most of these protesters supported the war, even if they frequently disagreed with Lincoln’s conduct of it. At the same time, there were also Democrats, known as Copperheads, who opposed the war effort itself. Not themselves desiring to leave the Union, they argued for peace, claiming that a violent response to secession would create such animosity that it would be impossible ever to bring about a national reconciliation. If, to their enemies, Copperheads were Southern sympathizers, from their point of view they were honest critics of the administration. Their biggest base of support was in the mid-West, especially Ohio, Indiana, and Illinois. They were in part motivated by economics. Lincoln’s blockade of the Mississippi River led to a severe depression in the mid-West, which relied on the river for trade. That depression ignited already strong sectional loyalty. Midwesterners traditionally defined themselves against the East, not the South. Now it seemed as if Lincoln had become a tool of Northeastern capitalists, furthering their interests at the expense of midwestern farmers and artisans. Many of those farmers and artisans fell prey to “Negrophobia,” both because they felt that freed slaves would threaten their jobs or livelihoods and because of racial prejudice. They also resented a war that would free blacks while threatening their civil liberties. The most notorious Copperhead was Clement L. Vallandigham, a Democratic lawyer/ politician from Ohio. Vallandigham was a special target of Lincoln’s supporters because he was both bold and articulate. An admirer of Edmund Burke, Jefferson, and J.C. Calhoun, he eloquently quoted from the Constitution and classical history to bolster his arguments. His motto was 220 B ROOK T HOMAS “The Constitution as it is; the Union as it was.” 3 Both phrases registered his loyalty. He was a Unionist who defended the Constitution. But, combined, the two phrases also implied that the Union under Lincoln was no longer bound by the limits of the Constitution. Two of the most important aspects of the Constitution for Vallandigham were its protection of states’ rights and what today we would call individuals’ civil liberties, although he frequently called them civil rights. His promotion of civil liberties was longstanding. For instance, campaigning for the Ohio legislature in 1845, he advocated - unsuccessfully - the abolition of capital punishment. In Congress, before the war, he sponsored a bill to suppress harsh disciplinary practices on American sailing vessels and a resolution to grant Jews the same rights as other US citizens while travelling abroad. During the war, he sought - again unsuccessfully - to amend a bill so that rabbis could serve as chaplains in the army. Nonetheless, civil liberties for him were reserved for whites. As the historian most familiar with his work puts it, Vallandigham was “the congenital champion of the underdog - except where the rights of black men were concerned” (Klement 29). Even so, it is worth remembering that in 1850 his stand on slavery was very close to Lincoln’s. Like Lincoln at that time, Vallandigham considered slavery immoral, but felt that it was a local institution that could be abolished within a state only by that state. Lincoln would eventually change his view, while Vallandigham would speak less and less of slavery’s immorality and more and more about states’ rights. An important reason for this divide was the fact that Lincoln was a nationalist, while Vallandigham was a sectionalist. With midwestern sectional loyalty, Vallandigham did not blame the Confederate states for breaking up the union. He blamed, instead, abolitionists because their evocation of a “higher” standard of universal rights in order to impose their standards on the rest of the country violated the political, not moral, principle of the comity of sections. Vallandigham’s hatred of abolitionists was closely linked to his opposition to New England in general, a section which he associated with the moral rigidity of the Puritans. If, Vallandigham argued, peace were declared, and New England were not allowed to dominate US politics, common economic, cultural, and racial interests would eventually lead to reunification. He even toyed with the idea of imagining a split in the country at the Hudson River, not the Mason-Dixon line. Such arguments made Vallandigham a thorn in the side of the administration. Early during the war, he had even introduced a bill to imprison Lincoln if arrests of citizens in the loyal states persisted. His attacks on the administration were relentless and drew on the more radical oppositional 3 The best account of Vallandigham is Klement, 1970. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 221 rhetoric of the time. The United States, he claimed, had turned to despotic rule in which the rights of citizens were no longer protected. He compared Lincoln to George III and Louis XV as well as to Caesar, Cromwell, and Napoleon. If these comparisons seem outrageous to us today, we have to remember that they were made before the myth of Lincoln emerged. There was widespread fear that this unschooled backwoodsman would, on the one hand, use the war to establish a dictatorship or, on the other, become simply the puppet of abolitionist or Northeastern capitalist interests. Thus people listened carefully when Vallandigham and others described wartime arrests as the institution of a reign of terror. Lincoln’s defenders clearly disagreed, but their rhetoric was often just as extreme. The Republican press branded Vallandigham a secessionist traitor, compared him to Benedict Arnold and Aaron Burr, and accused him of championing Jefferson Davis. Indeed, Vallandigham posed enough of a threat that getting him out of Congress became an important priority. Thus before the Fall 1862 Congressional elections, the Republican-controlled state legislature in Ohio redrew Vallandigham’s election district to make his defeat more likely. The strategy was successful, and despite large Republican losses in that election, Vallandigham was not reelected, although he would have won under the old boundaries. Vallandigham’s response to his ouster was to give a widely publicized speech from the halls of Congress January 14, 1863, demanding peace. Once the new Congress was seated, Vallandigham no longer had the Capitol as a forum to expound his ideas, but back in his home state of Ohio he soon found a new way to protest civil rights abuses. The chief military officer in the Ohio area was General Burnside, who was placed there after commanding the Army of the Potomac in the disastrous Battle of Fredericksburg in December, 1862. April 13, 1863, Burnside, who rented a home from a relative of Herman Melville, delivered General Order No. 38, which announced that “all persons found within our lines, who commit acts for the benefit of the enemies of our country will be tried as spies or traitors, and, if convicted, will suffer death.” In addition, “the habit of declaring sympathy for the enemy will not be allowed in this department. Persons committing such offenses will be at once arrested, with a view to being tried as above stated, or sent beyond our lines into the lines of their friends” (Nicolay and Hay v.7, 328-9). The wide latitude by which declarations of sympathy for the enemy could be interpreted made this order ripe for abuse, and it met with strong protests. May 1, 1863, in Mt Vernon, Ohio, Vallandigham decided to test its limits with an impassioned speech. He chose Mt. Vernon for symbolic purposes. Although he harshly criticized the government, he tried to make it clear that he did so as a patriot who honored the vision of the founding 222 B ROOK T HOMAS fathers. He began by alluding to the American flags that decorated the platform on which he spoke. They symbolized, he said, the Constitution of the country, made sacred by Democratic presidents. Expressing his reverence for the flag and his obedience to the Constitution, he went on to claim that, if it had not been for the Republican Party, all thirty four states represented by the flag’s stars would still be united. Turning to his rights as a freeman, he mocked Burnside’s General Order No. 38, calling it an usurpation of arbitrary power, and asserted that his right to speak derived from the Constitution. “The sooner the people inform the minions of usurped power that they will not submit to such restrictions upon their liberties, the better,” he was quoted as saying. After almost two hours, he moved toward his conclusion by urging that the “remedy” for all “the evils” was at the polling place through the “ballot-box.” Denouncing “King Lincoln,” he ended by professing his love of the Union and his desire to see it restored through compromise (Klement 152-5). An officer sent by Burnside took notes on the speech, and on the morning of May 5 soldiers forced their way into Vallandigham’s home and arrested him. They took him to Cincinnati and tried him the next day in military court. Vallandigham protested that, as a civilian, he should be tried in a civil court, but he was convicted of expressing sympathy for those in arms against the government of the United States. He was sentenced to confinement in a fortress of the United States for the duration of the war. All of this took Lincoln by surprise and most likely, if he had been consulted, he would not have condoned Vallandigham’s arrest. But he felt bound to support his general, although he did alter the sentence by directing that Vallandigham be sent behind Confederate lines. Lincoln’s strategy was to keep Vallandigham from becoming a martyr, and he was partially successful, since some were convinced that Vallandigham was a friend of the South. In fact, although Vallandigham was treated courteously, he was not received as a friend, since he continued to advocate peace and reunion, while the South wanted independence. Thus, even though the Republican press depicted him as among friends, the Confederates encouraged him to leave. Running the blockade to Bermuda, he proceeded to Canada, where, in exile, he conducted his campaign for governor in the fall election after being nominated by Ohio Democrats capitalizing on his newly won notoriety. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 223 III. Vallandigham’s arrest and conviction sparked protests across the nation. 4 The most important was in Albany, New York. It resulted in a May 19, 1863, letter to the President sent by a group of prominent Democrats, including another Melville relative. Containing ten resolutions, the letter begins by asserting the loyalty of those who signed it as well as their support of the war. It, nonetheless, insists that the Administration stay true to the Constitution and recognize the “rights of the States and the liberties of the citizen” (Corning 741). Especially important was the maintenance of civil over military law, except in areas where civil courts could not operate. Vallandigham’s arrest and conviction, it argues, violated this great constitutional principle. Not guilty of treason as defined by the Constitution, he had been arrested merely for speaking out “in public against the Administration and military orders of a general” (Corning 741). Strategically quoting the Whig Daniel Webster on the right to criticize “public measures and the merits of public men,” it claims that Vallandigham’s arrest and conviction struck a “fatal blow at the supremacy of law, and the authority of the State and Federal constitutions” (Corning 742). Anticipating objections that the conditions of war demanded special measures, it counters, “That these safeguards of the rights of the citizen … were intended more especially for his protection in times of civil commotion. They were secured substantially to the English people, after years of protracted civil war, and were adopted into our Constitution at the close of the Revolution. They have stood the test of seventy-six years of trial under our republican system, under circumstances that show that, while they constitute the foundation of all free government, they are the elements of enduring stability of the Republic” (Corning 742). Concluding with a reassertion of the signers’ loyalty, it insists that the wrong done be undone. Although this letter was addressed to Lincoln, it was clearly intended to appeal to the court of public opinion, since it was widely published. Lincoln’s response was also widely publicized. He starts by congratulating the nation for his critics’ patriotism, “despite the folly or wickedness” that they think his administration has committed (Corning 743). Without calling attention to itself, this opening shrewdly refutes a major charge levelled against him. Accused of unconstitutionally imprisoning someone who spoke out against him, Lincoln responds with generosity and self-mockery, proof in itself that he is open to criticism. Indeed, if the criticism were “merely personal,” that would be the end of his response. But constitutional issues are at stake. Thus, he feels compelled to go on. 4 In addition to Klement, 1970, see Curtis. 224 B ROOK T HOMAS His critics, he notes, feel that the Constitution is the same in all circumstances. But, he argues, “in its application,” it is different “in cases of rebellion or invasion involving the public safety” from “time of profound peace and public security.” Addressing the concern that his policies violate basic principles of free government, Lincoln compares taking “strong measures in time of rebellion” with taking a drug when one is sick. Just as one is necessary, even if it is not “good food” when one is well, so the others are necessary, even if unconstitutional in time of peace (Corning 749). Necessary because a widespread conspiracy, plotted for thirty years, had positioned Southern sympathizers in “all departments of Government and nearly all the communities of the people.” Keeping “on foot among us a most efficient corps of spies, informers, suppliers, and aiders and abettors of their cause,” conspirators, “under cover of ‘liberty of speech,’ ‘liberty of press,’ and ‘habeas corpus’,” worked to destroy the Constitution at the same time that they appealed to it for protection (Corning 745). Civil courts, Lincoln insists, are “utterly incompetent” to deal with conspiracies of this sort. They “are organized chiefly for trials of individuals, or, at most, a few individuals acting in concert; and this in quiet times, and on charges of crimes well defined in law” (Corning 746). Only military courts, he claims, can deal with the threat of “insurgent sympathizers” in a time of national emergency. “Arrests by process of courts, and arrests in cases of rebellion, do not proceed altogether upon the same basis. The former is directed at the small percentage of ordinary and continuous perpetuation of crime; while the latter is directed at sudden and extensive uprisings against Government, which, at most, will succeed or fail in no great length of time. In the latter case, arrests are made, not so much for what has been done, as for what probably would be done” (Corning 746-7). To support this theory of preemptive arrests, Lincoln points to the many Confederate officers who at the outbreak of the war were still in the US military and imagines what would have happened if they had been arrested. “I think,” he speculates, “the time not unlikely to come when I shall be blamed for having made too few arrests rather than too many.” This example points to prominent rebels, but Lincoln gives a sense of how broadly he defines a sympathizer when he claims that, “The man who stands by and says nothing when the peril of his Government is discussed, cannot be misunderstood. If not hindered, he is sure to help the enemy; much more, if he talks ambiguously - talks for his country with ‘buts’ and ‘ifs’ and ‘ands’” (Corning 747). Despite turning silence and equivocation into disloyalty, Lincoln admits that, if Vallandigham had been arrested simply for criticizing the administration, he would have been wrongly arrested. But that was not his offence. Vallandigham was “damaging the army, upon the existence and vigor of Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 225 which the life of the nation depends. He was warring upon the military, and thus gave the military constitutional jurisdiction to lay hands upon him” (Corning 748). Lincoln’s evidence of Vallandigham’s assault on the military was his criticism of the draft. “He who dissuades one man from volunteering, or induces one soldier to desert,” Lincoln asserts, “weakens the Union cause as much as he who kills a Union soldier in battle” (Corning 746). The logic of Lincoln’s analogy may be a bit shaky, but, as he well knew, logic does not always win political arguments. Indeed, the most memorable and effective passage in his response appeals, not to logos, but to pathos. “Long experience,” he writes, “has shown that armies cannot be maintained unless desertions shall be punished by the severe penalty of death. The case requires, and the law and the Constitution sanction, this punishment. Must I shoot a simple-minded soldier-boy who deserts, while I must not touch the hair of a wily agitator who induces him to desert? … I think that in such a case to silence the agitator and save the boy is not only constitutional, but withal a great mercy” (748-9). Having transformed Vallandigham’s conviction into an act of mercy, Lincoln concludes with an appeal to bi-partisanship. Noting that his critics refer to themselves as “‘Democrats’ rather than ‘American citizens,’” he implies that their criticism is linked to politics. “In this time of national peril,” he implores, “I would have preferred to meet you upon a level one step higher than any party platform” (Corning 749). Lincoln’s response moved enough people so that, along with military victories at Gettysburg and Vicksburg, it helped defeat Vallandigham in the fall election. Politically effective in the short run, it remains, however, a stain on his reputation. Indeed, Lincoln’s paranoid fears of conspiracy, his defense of preemptive arrests, and his charge that any qualification of loyalty is an aid to the enemy show why he has been harshly criticized by some defenders of civil liberties. Those critics would seem to have had the last word. When Vallandigham’s appeal came to the Supreme Court in the midst of war, the Court retreated behind a technicality and refused to hear it. But soon after the war ended, it heard a case that raised similar substantive issues. In Ex parte Milligan the Court gave a clear rebuke to Lincoln’s policies of trying civilians by military commissions. It is to that case that I now want to turn, for it, more than any other, affirms the Constitution’s commitment to civil liberties during wartime at the same time that it illustrates the postbellum conflict between civil rights and civil liberties. 226 B ROOK T HOMAS IV. Like Vallandigham, Lamdin P. Milligan was a Copperhead. In his home state of Indiana, he criticized Lincoln’s policies during the war, especially his crackdown on “civil rights” through the institution of the draft and the suspension of habeas corpus. Thought to be a member of the Sons of Liberty, which allegedly conspired with the Confederates, Milligan was accused of trying to prevent enlistments and encouraging desertion. Denied habeas corpus and tried by a military tribunal, he was sentenced to hang, prompting him to petition, unsuccessfully, first to Lincoln and then to Andrew Johnson for a pardon. Nonetheless, he eventually did have his sentence commuted to life imprisonment, allowing him to pursue his legal challenge to the Supreme Court. The case for the government was argued primarily by Attorney General A.G. Speed and General Benjamin Butler. Butler had gained notoriety during the Civil War for the harsh martial law he imposed as commanding officer over occupied New Orleans. For instance, one New Orleans citizen was hanged for tearing down the US flag. The incident that got him the most publicity, however, was his insult to southern womanhood when he declared that “Any lady who shall by word or gesture express contempt of any Federal officer or soldier shall be liable, without protection or redress, to be treated as common prostitutes are treated” (Campbell 106). Arrayed against him was a formidable team of legal minds. David Dudley Field, born in New England, was the brother of Supreme Court Justice Stephen S. Field and Cyrus W. Field, the man responsible for the transatlantic cable. In 1848 Field had written a code of civil procedures for the state of New York that became the basis of civil law reform in the United States and abroad. The Field Code influenced the English Judicature Acts of 1873 and 1875, which were then adopted by many British colonies. Among other things, as a democratic reform aimed at an institution once associated with the Crown, it abolished courts of equity, thus denying Melville’s fictional lawyer in “Bartelby” some easily earned income. By inclination a Democrat, Field had such strong anti-slavery convictions that he joined the Republican Party and helped nominate Lincoln. Working with Field was Jeremiah S. Black, who had been Attorney General under President Buchanan. Black also recruited a rising Republican from Ohio, General James Garfield, who would be elected President in 1880. The crucial issues at stake were the extent of the President’s power in wartime and whether he could authorize a military commission to try a civilian when, as was the case in Indiana, civil courts were open. Both sides drew on examples from history to offer opposing accounts of “the progress and development of Anglo-Saxon liberty” (56). Milligan’s attorneys claimed Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 227 that he had been denied rights guaranteed by the Constitution and that those rights could not be suspended during wartime. Reminding the Court that executive power is not a kingly power, they insisted that the only theory of government “compatible with civil liberty” is one that restricts the power of the executive (31). At the same time, they insisted that the framers of the Constitution were wise enough not to restrict those powers too much. As Black put it, “This government of ours has powers to defend itself without violating its own laws; it does not carry the seeds of destruction in its own bosom. It is clothed from head to foot in a panoply of defensive armor” (81-2). Butler agreed, but only because, he argued, the Constitution gave the President powers during war that Milligan’s lawyers would deny him. “We insist only that the Constitution be interpreted so as to save the nation, and not let it perish” (104). Civil courts might have been open in Indiana, but only “because the strong arm of the military upheld them” (87). Getting in a dig at Black, who had been Buchanan’s attorney general, he alluded to Buchanan’s helplessness in the face of secession. One danger to the nation that Black did not consider, he gloated, was “Imbecility of administration; such an administration as should say that there is no constitutional right in a State to go out of the Union, but that there is no power in the Constitution to coerce a State or her people, if she choose to go out” (89). The Court sided with Milligan, unanimously ruling that the President had no authority to try a civilian in military courts when civil courts were open. According to Justice David Davis, “No greater question was ever considered by this court, nor one which more nearly concerns the rights of the whole people” (118-9). Contrary to the Constitution, Milligan had been denied trial by a proper court of law and trial by jury. To the objection that conditions of rebellion and war created special circumstances, Davis replied, The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protections all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism, but the theory of necessity upon which it is based is false; for the government, within the Constitution, has all the powers granted to it, which are necessary to preserve its existence; as has been happily proved by the result of the great effort to throw off its just authority (120-1). To the objection that the military commission was justified by martial law, Davis replied, “If this were true, it could be well said that a country, preserved at the sacrifice of all the cardinal principles of liberty, is not worth the 228 B ROOK T HOMAS cost of preservation” (126). For Justice Davis “Civil liberty and this kind of martial law cannot endure together; the antagonism is irreconcilable; and, in the conflict, one or the other must perish” (124-5). For the Court, it was paramount that civil liberty survive. In many ways a rebuke to Lincoln, this spirited defence of civil liberties transcended party lines. Lincoln himself had appointed five members of the Court, including Justice Davis, his friend and campaign manager. In addition, as we have seen, Milligan’s defence included, not only two of the most famous Democratic lawyers of the day, Black and Field, but also the Republican Garfield. Garfield knew that he would be attacked by some partisan Republicans for serving “in defense of traitors” (395). But even though he had been a brigadier general, had denounced Copperheads, and had signed the order transferring Vallandigham to the Confederacy, he had, in his own words, “resisted some attempts to extend the power of Military Commissions so far as to try civilians who were interfering in any way with the war - such fellows as Vallandigham. I had resisted that as being un-American and contrary to the old English spirit of liberty” (825-6). Thus when the opportunity came to help defend Milligan, he wrote to a friend, “I was willing to subject myself to the misunderstanding of some for the sake of securing the supremacy of the civil over the military authority” (395). Despite Ex parte Milligan, the supremacy of civilian authority is by no means assured today. Indeed, the Bush administration has justified its crackdown on civil liberties by evoking the example of Lincoln and drawing on arguments he made. It has also drawn on a metaphor Justice Robert H. Jackson used in his dissent in the 1949 free speech case Terminiello v. Chicago. In Terminiello, the Court’s majority had overturned the disorderly conduct conviction of a right-wing, anti-Semitic, pro-Nazi priest, whose speech had provoked a riot. According to Justice William O. Douglas’s opinion, the Chicago ordinance under which Terminiello had been convicted violated the First Amendment because it was too broadly constructed. Having recently served as prosecutor of the Nuremburg war crimes trials, Justice Jackson, joined by Justice Burton, responded by pointing out the danger of letting people like Terminiello exploit our protection of civil liberties in order to destroy our democratic form of government. “The choice,” he argued, “is not between order and liberty. It is between liberty with order and anarchy without either. There is a danger that if the Court, does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact” (37). 5 5 Four years earlier in the notorious case of Korematsu v. U.S. 323 U.S. 214 at 244), Justice Jackson had argued, “The armed services must protect a society, not merely its Constitution.” This statement came, however, in a courageous dissent. Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 229 In raising the fear of national suicide, Justice Jackson was influenced by Lincoln’s argument in the Vallandigham case. Writing about the conflict between “liberty and authority,” “perhaps the most delicate, difficult and shifting of all balances which the Court is expected to maintain,” he claims that “President Lincoln in his famous letter to Erastus Corning and others, defended his conduct,” and said “all that ever could be said and always will be said” in favor of suspending civil liberties “in time of national emergency” (75). For Jackson, following the logic of Lincoln, it would be illogical for the Constitution to protect actions leading to the destruction of the nation it constituted. What neither Justice Jackson nor the Bush Administration acknowledge, however, is the fact that the metaphor of suicide had been used in Milligan - but for very different purposes. Arguing against the government’s claim that national security justified the President’s violation of civil liberties, Attorney Black warned, “A violation of law on the pretence of saving such a government as ours is not self-preservation, but suicide” (81). From Black’s point of view, one adopted by the Court in Milligan, the real risk of suicide comes from abusing the founding principles of the nation while claiming to save it. To violate the document that constitutes the nation is not to save it, but to destroy it. 6 Given such arguments and Justice Davis’s impassioned language, it is no wonder that, soon after World War I, Charles Warren noted that Ex parte Milligan had been “long recognized as one of the bulwarks of American liberty” (v.2 427). Similarly, soon after World War II, Allan Nevins ventured that “The heart of the decision is the heart of the difference between the United States of America and Nazi Germany or the Soviet Union” (118). It is certainly cited today by those opposed to the Bush administration’s policy on civil liberties. What they do not know is that, when it was first decided, it was compared to Dred Scott and opposed by those seeking to grant civil rights to newly freed slaves. 6 Black’s use of the metaphor was repeated in the 1963 case of Kennedy v. Mendoza- Martinez. In that case, Justice Arthur J. Goldberg ruled that the government could not automatically take away the citizenship of someone who left the country to evade the military draft. Writing in the light of a long history of constitutional challenges to the draft, especially in the Civil War and World War I, he wrote: “The powers of Congress to require military service for the common defense are broad and far-reaching, for while the Constitution protects against the invasions of individual rights, it is not a suicide pact” (159-60). From Justice Goldberg’s point of view, the Constitution allows Congress to have the powers it has to institute a draft only because it simultaneously protects individual rights. Far from leading to a potential destruction of the document, maintaining those protections is essential to its life. 230 B ROOK T HOMAS V. The extent to which Milligan pitted proponents of civil rights against those of civil liberties is illustrated by the government’s argument. On the one hand, Attorney General Speed and Butler used language, according to a respected twentieth-century legal scholar, “suited to the royal Stuarts in times before the prerogative had been bound by law and custom of the constitution” (Fairman 201). With the onset of war, they declared, the President was the “sole judge of the exigencies, necessities, and duties of the occasion, their extent and duration. During the war his power must be without limit” (18). On the other hand, it was Butler who raised a point that seems obvious to people today. Responding to eloquent arguments about constitutional protections of liberty, he reminds the Court, “The Constitution provides that ‘no person’ shall be deprived of liberty without due process of law. And yet, as we know, whole generations of people in this land - as many as four millions of them at one time - people described in the Constitution by the same word, ‘persons,’ have been till lately deprived of liberty ever since the adoption of the Constitution, without any process of law whatever” (103). As Butler well knew, the wartime effort that led to the emancipation of those people often infringed on other people’s civil liberties. For instance, Lincoln coupled his September 24, 1862, crackdown on civil liberties with the Preliminary Emancipation Proclamation two days earlier. The two were linked because both relied on the executive powers the President claimed as Commander-in-Chief during wartime. In his “First Inaugural” he had unequivocally stated that the Constitution gave him “no lawful right” to “interfere with the institution of slavery in the States where it exists” (109). A year and a half later, he interfered with slavery after all, evoking his constitutional authority to put down an armed rebellion. Arguing that slavery’s existence in rebellious states aided their military efforts, Lincoln abolished it, not universally, but only in those states where its existence posed a threat to the Northern Army. Many who attacked Lincoln’s crackdown on civil liberties also attacked his use of wartime powers to free slaves. This included New England’s Benjamin Curtis, who as a Supreme Court Justice had written a powerful dissent in Dred Scott. Nonetheless, after the war, most who shared Butler’s desire to make former slaves equal citizens compared Milligan, the case Nevins would call “a great triumph for the civil liberties of Americans in time of war or internal dissension” (118), to the infamous case of Dred Scott. Today’s defenders of civil liberties would probably agree with Justice Davis when he denied the appropriateness of that comparison. Dred Scott, he argued, served the interests of slavery, whereas Milligan spoke for liberty. Indeed, when attacked, he pleaded for public help from former Justice Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 231 Curtis. 7 But the comparison made perfect sense to Radical Republicans at the time. It did because of a division in the Court. Although it unanimously held that the military commission authorized by the President was unlawful, it split over another, extremely contentious, issue. Not required by the circumstances of the case, a five-justice majority ruled that Congress, the voice of the people, as well as the President, had no constitutional power to create military commissions during wartime. Their opinion provoked a strong dissent from the other four justices, including Chief Justice Chase. These four justices agreed with the other five that the way Milligan was tried violated the March 3, 1863, Act of Congress that authorized the suspension of habeas corpus but placed various conditions upon the executive branch when it did so. Once that point was established, however, they felt that the Court’s business was done. They very much disagreed with the majority that the Constitution forbid even Congress from establishing military commissions during wartime. “Congress has the power not only to raise and support and govern armies but to declare war. It has, therefore, the power to provide by law for carrying on war. This power necessarily extends to all legislation essential to the prosecution of war with vigor and success, except such as interferes with the command of the forces and the conduct of campaigns. That power and duty belong to the President as commander-in-chief… . The power to make necessary laws is in the Congress; the power to execute in the President” (139). To be sure, Congress did not choose to exercise its power to create military commissions. Even so, the minority insisted, “in such a time of public danger, Congress had power, under the Constitution,” to authorize military trials, even when civil courts were open (140). The minority’s reasoning was powerful enough to cause even Warren to temper his praise of the decision by noting that “there was a serious and well-founded criticism” of the Court’s ruling on the power of Congress (440). Indeed, in 1866 Radical Republicans felt that, in limiting Congress’s power, the Court had, as in Dred Scott, catered to Southern interests. If Dred 7 Curtis was sympathetic. With Congress threatening to impeach the President for failing to go along with its plans for Radical Reconstruction, he felt that “at present the question is whether Congress can destroy the Executive power.” He also felt that the bar “can be & will be wholly persuaded that the decision is right” (Fairman 235). He did not, however, have the energy or time to publish a pamphlet on Davis‘s behalf. Fairman also notes that in fact one could argue that “Dred Scott asserted a Fifth Amendment liberty, whereas Milligan was read throughout the Southern States as a new affirmation that Congress would not be allowed to interfere with their own peculiar institution” (236). Even before the end of the war Justice Davis had written a friend about Sumner’s plans for Reconstruction, “The negro can never be elevated to social & political rights in this country & all wise statesmen know it” (Fairman 60). 232 B ROOK T HOMAS Scott did so by overruling the Missouri Compromise, which gave Congress power over US territories, Milligan did so by limiting Congress’s power to establish military rule in the South, which was necessary to protect the rights of freedmen during Reconstruction. In both, the controversial rulings were made in dicta of split decisions, not necessary for the outcome of the case. Furthermore, both majorities justified their rulings in the name of civil liberties. Dred Scott was the first Supreme Court decision to evoke the Bill of Rights to overturn Congressional legislation. It did so when Justice Taney cited the due process clause of the Fifth Amendment to argue that the Missouri Compromise deprived a US citizen of “his liberty or property, merely because he brought his property [a slave] into a particular Territory of the United States” (Fairman 216 n102). Milligan asserted the supremacy of civilian over military rule by guaranteeing citizens the right to be tried in civil courts. In a letter to Chief Justice Chase, John Jay expressed great concern about the majority decision. “If, as the public begin to fear, their denial of the powers of Congress is any index to the view they are prepared to take of the great questions that will come before them in reference to Reconstruction, our situation is certainly a grave one” (Warren 428). Thaddeaus Stevens, the driving force behind Congressional Reconstruction, felt that Milligan, “although in terms not as infamous as the Dred Scott decision, is yet far more dangerous in its operation upon the lives and liberties of the loyal men of this country” (Warren 448). Harper’s Weekly fumed, “The action in regard to the Supreme Court need not be misunderstood. It is not, whether in time of peace in loyal States the civil Courts shall be supreme, which nobody questions. It is, whether loyal men or rebels shall reorganize the Union” (Warren 447). It went on to advocate packing the Court to turn the five-judge majority into a minority. These fears seemed justified when President Johnson immediately stopped all military trials of civilians in the occupied South and read the decision as endorsing his plan to end military rule as soon as possible. In the end, however, the fears of Radical Republicans were not completely justified, since the Court did not declare military rule of the South during Reconstruction unconstitutional. 8 Even so, the Court never came close to endorsing Sumner’s vision of a unified nation dedicated to both liberty and equality. For Sumner, the “essential conditions of national life” were “one sovereignty, one citizen- 8 David Dudley Field along with William Cullen Bryant did support President Johnson’s veto of the Freedman’s Bureau Bill. Even though the veto was not sustained, Bryant’s New York Evening Post expressed grave concern that the bill’s authorization of “military protection” and “military jurisdiction over all cases and questions” concerning freedmen’s rights would be a pernicious “danger to the liberties of the country” (Fairman 344). Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 233 ship, one people” (61). Achieving that unity would, he felt, transform the “whole face of the country… . There will be concord for discord, smiles for frowns. There will be a new consciousness of national life, with a corresponding glow. The soul will dilate with the assured unity of the Republic, and all will feel the glory of its citizenship. Since that of Rome, nothing so commanding” (63-4). Sumner’s allusion to Rome is telling. He claimed to speak of the unity of a republic, but many feared that his program would turn the United States into an empire. He acknowledges as much himself. “Each locality,” he argued, “has its own way in matters peculiar to itself. But the rights of all must be placed under the protection of all; … Here the rule must be uniform, and it must be sustained by the central power radiating to every part of the various empire… . Call it imperialism, if you please: it is simply the imperialism of the Declaration of Independence with all its promises fulfilled” (60). Sumner’s attempt to enlist the Declaration in the service of an imperialist mission was strongly opposed by those who celebrated it for liberating the colonies from Britain’s imperial yoke. Liberty in the United States, they felt, had been maintained by resisting the centralizing tendencies that Sumner espoused. To a large extent, the Supreme Court went along. Less than a decade after the end of the war, in the Slaughter House Cases (1873), it made clear that there were still two citizenships in the United States: state and national. If that case did not involve the rights of freedman, one decided in 1876 did. The case of United States v. Cruikshank resulted from events Easter Sunday 1873 in Colfax (named after Republican Vice President Schuyler Colfax) in the newly established Grant Parish in Louisiana. When the Republican governor appointed some of his supporters, including blacks, to local offices, a newly established White League and other paramilitary groups with access to riverboat cannons resisted, storming the local courthouse occupied by outmanned but armed blacks. Two whites were killed, while from 69 to over a hundred blacks were killed. Federal troops captured a number of whites who were brought to trial. Of the nearly one hundred defendants, William Cruikshank and two others were convicted under the 1870 Federal Enforcement Act of conspiracy to “injure, oppress, threaten, or intimidate” African Americans trying to exercise their rights as citizens. On appeal, the case made its way to the Supreme Court. 9 The Court overturned the convictions by maintaining a strict separation between federal and state citizenship. “There is in our political system,” the Court summarized, “a government of each of the several States, and a government of the United States. Each is distinct from the others, and has citizens of its own, who owe it allegiance, and whose rights, within its juris- 9 See Soifer for an account of the events leading to the case. 234 B ROOK T HOMAS diction, it must protect. The same person may be at the same time a citizen of the United States and a citizen of a State; but his rights of citizenship under one of these governments will be different from those he has under the other.” Although “within the scope of its powers,” the US government is “supreme and beyond the States,” its scope is limited. It “can neither grant nor secure to its citizens rights or privileges which are not expressedly or by implication placed under its jurisdiction.” Since the right in question, “the right of the people peacefully to assemble for lawful purposes,” existed “long before the adoption of the Constitution,” it does not come within the scope of federal powers, but is instead a right to be protected by the states. “Sovereignty, for the protection of the rights of life and personal liberty within the respective States, rests alone with the States” (542). As a result, the rights Cruikshank was accused of violating were not covered under the Federal Enforcement Act, and responsibility for protecting them rested with individual states whose sovereignty pre-dated the Constitution. A clear rebuke to Sumner’s ideal of one sovereignty and one citizenship, Cruikshank confirms his belief that the rights of African Americans would not be protected without granting imperial power to a centralized national government. As such, it is a terrible blot on the reputation of the Court. But even as we condemn it, we need to recognize that, from the perspective of the Court and of Cruikshank’s lawyers, it rested on some of the same principles of constitutional liberty that underlay the Milligan case. In Milligan Justice Davis declared that “it is the birthright of every American citizen when charged with crime, to be tried and punished according to law” (119). Similarly, in Cruikshank the Court ruled, “In criminal cases, prosecuted under the laws of the United States, the accused has the constitutional right ‘to be informed of the nature and cause of the accusation.’ The indictment must set forth the offence with clearness and all necessary certainty, to apprise the accused of the crime with which he stands charged, and every ingredient of which the offence is composed must be accurately and clearly alleged” (544). The government had not heeded this guarantee, and, just as in Milligan, some justices felt that Milligan had acted improperly, but felt that he should not be convicted if the government violated fundamental principles of civil liberty, so some justices in Cruikshank felt the same. It is worth speculating about what stand the ACLU would have taken on this case, if it had existed at the time. What we do know is that David Dudley Field, who argued Milligan’s case, argued Cruikshank’s, employing some of the same rhetoric. Field was joined by Reverdy Johnson, who as a Senator had passionately argued against trials by military commissions because they disregarded “all the safeguards and rules of evidence, adopted after the experience of centuries” (Fairman 188). We also know that even some moderate Republicans, includ- Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 235 ing Carl Schurz, who was both anti-slavery and a great defender of civil liberties, claimed that the Enforcement Act and the accompanying Ku Klux Klan Act threatened the status of the states as “depositories of the rights of the individual” (Foner 456). The Ku Klux Klan Act even had a provision authorizing the suspension of habeas corpus. That provision points to how complicated the relation between civil liberties and civil rights was in the period. In 1867 Radical Republicans had passed the Habeas Corpus Act because they felt it was necessary to allow blacks and white Unionists in the South to appeal to federal, not state, courts. What they could not anticipate was that, when Republican-controlled state governments tried to crack down on the Klan, suspected members used it for their own benefit. Thus, four years later, those passing the Ku Klux Klan Act felt that the protection of blacks and white Unionists now depended on the possibility of suspending habeas corpus. If the Court’s decision in Cruikshank seemed to spell the end of Sumner’s vision of equal rights for all citizens, 1875 had seen passage of legislation that promised to move closer to that ideal. Congress had passed important civil rights bills in 1866 and again in 1870. Even so, Sumner tried a number of times to bring into law a new act that provided more extensive federal guarantees. January 15, 1872, he made the memorable speech I quoted at the start. Calling the “Declaration of Independence our Magna Charta,” he declares that “equality in rights is not only the first of rights, it is the axiom of political truth” (223). The real issue of the Civil War, he insists, pitting comments of Jefferson Davis against those of Lincoln, was the South’s refusal to accept this axiom. Waxing eloquent, he enthuses, “There is beauty in art, in literature, in science, and in every triumph of intelligence, all of which I covet for my country; but there is a higher beauty still in relieving the poor, in elevating the down-trodden. There is true grandeur in an example of justice, making the rights of all the same as our own” (260). Then, in a move guaranteed to mobilize opposition, he associates maintaining civil equality with the extension of the war, “Only by maintaining Equality will you maintain the great victory of the war” (262). Sumner’s bill was so important to him that, as he lay dying in 1874, he urged his friends E.R. Hoar and Frederick Douglass to dedicate themselves to its passage. A major roadblock to that death-bed wish arose in the Fall 1874 election when Democrats, for the first time since the war, took control of the House. Sparked into action, a lame-duck Republican Congress, partly in tribute to Sumner and led by the notorious Benjamin Butler, passed the 1875 Civil Rights Act, even though it lacked Sumner’s cherished provision outlawing segregated schools. Watered down, it was still a powerful statement that banned acts of racial discrimination in housing, theaters, and trains, etc.. Resisted and challenged in the South, this bill was on the books 236 B ROOK T HOMAS for only eight years. 10 In its October 1883 session, the US Supreme Court by an eight to one majority declared most of its provisions unconstitutional. The opinion of Court was written by Justice Joseph P. Bradley. Bradley had played a crucial role in the disputed election of 1876 when November results gave Democrat Samuel Tilden a clear majority over Republican Rutherford Hayes in the popular vote, but left the electoral college vote in dispute because three Southern states - South Carolina, Louisiana, and Florida - had rival sets of electors, one committed to Hayes, the other to Tilden. The controversy threatened to divide the country only eleven years after the end of civil war. Some Democrats went so far as to chant, “Tilden or Blood! ” Even if armed insurrection was unlikely so long as Republicans were in charge of the presidency and the army, Democrats in Congress still could have stopped the count of electors and made the job of any new president impossible. But cooler heads prevailed. Coming together, Democratic and Republican congressmen used their constitutional authority to create a special Electoral Commission of fifteen to decide disputes in the three states. The Commission was made up of five members of the House and five members of the Senate, evenly divided by party. Republican representatives included Hoar and Garfield. The Commission also had five Supreme Court Justices: two Republicans, two Democrats, and, it was planned, Justice Davis, a nominal Republican, but, especially because of his role in Milligan, someone trusted more by Democrats than by Republicans. Davis, however, was appointed Senator in Illinois. His replacement was Justice Bradley, a Republican, but recently applauded by Democrats for helping to bring Cruikshank to the Court. By an eight to seven majority, along strict party lines - with Bradley delivering the deciding vote - the Commission awarded all three states to Hayes and gave him a one-vote victory in the Electoral College. Intent on healing the country, Hayes unofficially agreed to one of the Democrats’ most important demands. Federal troops in the South would be returned to their barracks and not used to prop up Republican rule in states of the former Confederacy. Reconstruction ended when the new president took office March 1877 by announcing his “New Departure.” When Bradley penned the decision in the 1883 Civil Rights Cases, some felt that he was paying back a debt he owed Southerners for his role in the 1876 election. Whether that speculation is true or not, the decision was a stunning blow to advocates of civil rights. 10 A sense of this resistance can be found in Sidney Lanier’s poem called “Civil Rights” (1874). Kerkering discusses it but mistakenly dates the bill passed by Congress as 1874. He also misreads the poem by attributing the views of its uneducated, “cracker,” narrator with Lanier, thus missing how Lanier delivers his protest indirectly by dramatizing the effect it had on a certain class of Southerners. Lanier dismissed comparisons between his poem and Bret Harte’s “The Heathen Chinee” (128-9). Civil War, Civil Liberties, Civil Rights, and the Logic of the Supplement 237 Douglass, for instance, who was silent when Hayes ended Reconstruction, spoke out forcefully against the decision. Indeed, given Douglass’s faith in rule by law, one reason he might not have protested the events of 1877 was the fact that the Civil Rights Act of 1875 was on the books, providing for federal intervention in cases of racial discrimination. From our present perspective, Douglass’s anger seems fully justified. After all, the Fourteenth Amendment adopted in 1868 guarantees “equal protection of the laws,” which was all that the 1875 Act seemed to do. The Court’s decision, however, was based on a careful reading of the exact words of the Amendment. Deemed necessary because the Thirteenth Amendment forbade slavery and involuntary servitude without guaranteeing citizenship to African Americans, the Fourteenth Amendment has four clauses. The citizenship clause makes all “persons born or naturalized in the United States, and the subject to the jurisdiction thereof,” citizens. The second clause forbids states from abridging “the privileges and immunities” of US citizens. The third clause forbids states from depriving “any person of life, liberty, or property, without due process of law.” Likewise, the fourth forbids states from “denying to any person within its jurisdiction the equal protection of the laws.” The problem with the 1875 Act, according to the majority, was that it forbade discrimination in acts involving private parties, whereas in fact the Fourteenth Amendment addresses only “state action.” To grant the federal government power to forbid individual states from denying people equal protection was not, it argued, to give the federal government the power to police the relations between individuals. That power in our federal system is the responsibility of individual states. Thus the 1875 Act overstepped its authority and was unconstitutional. The most unsavory part of Bradley’s decision comes in his dismissal of the US government’s claim that the 1875 Act was authorized not only by the Fourteenth but also by the Thirteenth Amendment. Soon after the Thirteenth Amendment was passed, the Court had ruled that it forbade, not only the institution of slavery, but any badges and incidents of slavery. Because slavery had given rise to the sense of black inferiority, racial discrimination, the government argued, was a badge of slavery. Bradley strongly disagreed. Mere discrimination on the basis of race or color did not, he emphasized, stamp blacks with a badge of servitude linked to the institution of slavery. After all, free blacks in the antebellum period had also experienced discrimination. Declaring an end to what he saw as the federal government’s paternal protection of freedmen, he pronounced, “When a man has emerged from slavery, and by aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the ranks of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen or a man are 238 B ROOK T HOMAS to be protected in the ordinary modes by which other men’s rights are protected” (25). If that misguided sentence is frequently quoted, one almost universally overlooked reveals the extent to which Bradley felt that the attempt to enforce equal civil rights was a threat to individual liberty. For the federal government to try to “cover the whole domain of rights appertaining to life, liberty, and property” would, Bradley declared, “establish a code of municipal law regulative of all private rights between man and man in society” (13). Enforced civil equality, Bradley and seven other justices agreed, posed a risk to individual liberty. The majority opinion elicited a powerful dissent from Justice John Marshall Harlan, the only Southerner on the Court at the time and a former slaveholder. The dissent did not come easily, however. Noticing the difficulty that her husband was having writing, Harlan’s wife placed Taney’s inkstand - a prized momento of the couple - in a noticeable position on his desk. The memory of the role that Taney’s inkstand had played in Dred Scott seemed to motivate Harlan, who overcame his writer’s block and soon finished his dissent (Beth 229). It argued that, through “subtle and ingenious verbal criticism,” Bradley had sacrificed the “substance and spirit of the recent amendments” (26). Justice Harlan is, no doubt, correct. The Civil War amendments were added to the Constitution in part to bring about the equality Sumner imagined. But in order for them to do so, they would have had to overcome the logic of the supplement. Literary critics almost always see that logic as radical because it implies that adding something to an existing body has the potential to change it. But we need to remember that the body being supplemented also supplements the supplement. Added to the Constitution, the equality of rights intended by the amendments was transformed. To a large extent that transformation was brought about because of existing racism. But it was also, at least in part, due to a conflict between Sumner’s view of civil equality and the notion of civil liberty already embodied in the Constitution. Just as the attempt to bring about equal civil rights altered traditional constitutional protections of civil liberties by granting more powers to a centralized national state, so the existing protections of civil liberties limited the ability to bring about a more comprehensive program of equal civil rights. 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