Reconstruction as a Process of Statist Freedom

Gregory P. Downs. After Apomattox: Military Occupation and the Ends of War. Cambridge, MA: Harvard University Press, 2015.

It has been several decades since historians began the long process of redeeming the memory of Reconstruction from the dustbin the era had been consigned to by the Dunning school and subsequent scholars. It is no longer unthinkable, perhaps not even all that controversial, to argue that the era was marked by a noble, if ultimately limited and in many ways failed, experiment in expanding freedom. Reconstruction is no longer seen as a period of corruption and misrule imposed upon a defeated white Southern population, but rather as the first Civil Rights movement in American history.

But according to Downs, an important aspect of Reconstruction has been left out of the picture--the role of the military. While most historians of the period recognize there was such as thing as "military reconstruction" that understanding largely focuses on the role of the army in specific policing actions,and as the byproduct of a period in which the Federal government struggled to create new civic institutions and to populate political positions in the former Confederacy. Downs argues that the army played a much more central and proactive role in the period. This was made possible by an important fact that most histories get wrong--the Civil War did not end at Appomattox; in fact, it did not for several years after Lee surrendered to Grant. The lack of open warfare between formal armies, and the vanquishing of the Confederacy as a functioning polity meant the end of large-scale combat, but a formal, legal state of war existed until 1868 in most former CSA states, and until 1871 in a few others, finishing in Georgia. Until States were readmitted into the Union--under conditions imposed on them--and their elected representatives were seated in Congress, Republicans would insist that a state of war existed.

This didn't merely give the army an increased role in the enforcement of civil law--it some cases it meant that the army created law, and acted as the final arbiter of legal and judicial authority. In essence, the fact of martial law created the space for Republicans--both Radical and moderates, and even many conservatives--to rally together and take steps which in peacetime would have been impossible. The conditions of war allowed Republicans intent on stamping out white Southern insurgency and defending African-American (and white Republican) lives to go beyond the limits of the Constitution. The Thirteenth, Fourteenth, and Fifteenth Amendments were passed under circumstances which would not have passed Constitutional muster in normal times.

But Republicans and many in the army argued that as Reconstruction was not a normal time, they had both the opportunity and the obligation to go beyond the legal powers of the Constitution in order to save their conception of how it should work. In the Introduction, Downs writes "Constitutional protections that we still take for granted--due process, equal protection, birthright citizenship, the vote--were by-products of martial law." (2) The state of war gave Republicans the extra-legal space in which to expand the definition of citizenship and rights beyond all Antebellum norms. The presence of the army gave force to these experiments--it also gave physical, tangible support to freedmen's collective aspirations and bold experiments in building civic institutions and political organizations in the shadows of their former masters and the white society which had kept them enslaved prior to the arrival of liberating soldiers.

The experience of relying on the army to defend and support efforts and asserting political and economic freedom in the face of stiff and violent resistance meant that African-Americans in the South came to understand the role of government as being a defender of freedom and the basis of its implementation. This statist conception of liberty was completely at odds with the libertarian notion of the importance of freedom from government which was the ideological basis of the Democratic Party which would lead the assault on the political, social, and economic gains created during Reconstruction.

Downs admits that there are hard questions to consider in this story. The gains of Reconstruction were made through a temporary cession of full Constitutional supremacy. At the same time, recognizing that those gains were significant (if often tenuous and ephemeral) forces the reader to consider the degree to which rights are the product not just of abstract law, but of the plain fact of force and the willingness to use it.