America's Unwritten Constitution: The Precedents and Principles We Live By (16 page)

Thus, even though the ex-Confederate states claimed that they were simply perpetuating long-standing suffrage rules—in many places, free blacks had never been allowed to vote—the perpetuation of these old voting
rules in the late 1860s threatened to create a wholly new and qualitatively different sort of disfranchisement. Free blacks accounted for a minuscule proportion of the total free population of most southern states prior to 1860. But once slaves won their freedom, thanks to Lincoln’s Emancipation Proclamation and the subsequent Thirteenth Amendment, free blacks mushroomed almost overnight to become a vastly larger segment, a significantly greater proportion of free folk than had ever been excluded from the franchise in the antebellum era.
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Though it cannot be said that the Founders’ republican-government clause clearly required that these new freemen be enfranchised, neither can it be said that the clause clearly blessed the
unprecedented
disfranchisement of a
vast
number of
free
men. The written text did not clearly specify what should happen in this unanticipated scenario, and the unwritten antibacksliding principle could also be interpreted either way. Contrary to the complacent view, the First Reconstruction Act represented a new principle that was not clearly established in 1789; but contrary to the eccentric view, the act reflected a plausible application of Founding texts and principles to a situation that the Founders had simply failed to address with specificity.

IN ASSESSING THE CONSTITUTIONAL PROPRIETY
of the Reconstruction Act, we must keep three additional things in mind. First, the nation needed strong medicine to ensure that recently rebellious states would never again commit the ultimate act of unrepublicanism by waging war on a freely elected regime. Even if the act’s requirement of universal male suffrage in the old South was not an
intrinsic element
of republican government, it was an
appropriate instrument
of republican government, and thus good enough under
McCulloch
. Just as a continental bank, though not logically necessary for a continental army, was nevertheless quite useful to support such an army, so black suffrage in the South was quite useful to buttress the wholly proper republican-government project of ensuring due southern respect for the results of free elections. With blacks voting in the South, a second unilateral secession movement would be highly unlikely to prevail.

Second, the Reconstruction Act’s additional directive that ex-Confederate states ratify the Fourteenth Amendment was also an appropriate instrument
to further the republican-government ideal. The amendment required every state to honor concrete elements of a proper republican government, such as equal citizenship, free speech, free assembly, free religious exercise, and fair trials. Although in 1789 these concrete elements were perhaps not universally understood as necessary components of republican government, neither were they universally understood as wholly beyond the proper meaning of republicanism. Here, too, Reconstructors did not violate Founding principles even as they went beyond them, clarifying what the original text and late eighteenth-century history had left unclear. The Founders’ question mark properly gave way to the Reconstructors’ exclamation point.
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Third, Congress adopted the Reconstruction Act only after three-quarters of the true-blue states had already ratified the amendment—enough to make the amendment fully valid had Congress chosen simply to exclude ex-Confederate states from the Article V amendment tally (just as Congress in early 1865 had excluded all ex-Confederate states from the electoral-college tally in tabulating the presidential election results of 1864). Although the Reconstruction Congress ultimately opted to include ex-Confederate states in the amendment process, Congress need not have done so. Read holistically, the Constitution envisioned a federal union of republican states, and states without proper republican governments could not justly complain if they were simply excluded from the Article V state-count and treated as de facto federal territories pending reestablishment of proper republican governments.
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In the end, Congress did not go this far. Instead, Congress improvised a two-stage strategy that relied heavily on the verdict of true-blue states in the first stage of enactment, but then gave ex-gray states an important role during the final stage of enactment. The pivot in this two-stage enactment process was the First Reconstruction Act, an act adopted only after a deep and wide democratic consensus had been reached in the only states where true republicanism—with free speech, broad electorates, and fair elections—had generally prevailed in the preceding decade. Via the First Reconstruction Act, Congress ingeniously used the constitutional amendment process itself both as a good test of the South’s genuine commitment to republican government and as a good vehicle for restoring truly
republican southern states to their proper status as constitutional entities in good standing.

JUST AS THE WRITTEN FOUNDING
text of the republican-government clause was legitimately open to either a narrow or a broad reading during Reconstruction, so, too, the unwritten Reconstruction enactment principle glossing that Founding text could plausibly be read narrowly or broadly by still later faithful constitutional interpreters. Read narrowly, the enactment principle inherent in the First Reconstruction Act gave Congress broad power to hold states to a high standard of democracy only when state failures to meet these standards imperiled the entire constitutional project. Read more broadly, the enactment principle gave Congress wide discretion to determine when to intervene in states that fell short of the highest standards of contemporary democracy. Read even more broadly, the enactment principle visible in the Reconstruction amendment process empowered other branches of the federal government in addition to Congress. On this broadest reading, the 1860s enactment experience glossed the words of a 1780s clause about state republican government—and nothing in those words said that only the federal Congress, as opposed to federal courts, could give teeth to the demanding principle of state republicanism. Likewise, nothing in these words limited the federal role to moments of extreme national urgency.

As we shall see in
Chapter 4
, it is a broad view of this Reconstruction gloss that best explains one of the most dramatic subsequent episodes in the history of American constitutionalism—the insistence of the Warren Court that every state abide by the apportionment rule of “one person, one vote.”

ONE FINAL AND EYE-OPENING FEATURE
of the Reconstruction enactment process merits attention: The First Reconstruction Act explicitly authorized the Union Army (?!) to oversee the process of bringing the South into proper constitutional alignment. This military deployment might well have startled many a Founder who romanticized state militias while viewing
a continental army with deep suspicion; the deployment nevertheless represented a plausible effort to faithfully execute the Founders’ project in the unprecedented crisis kindled by the Confederates’ unconstitutional efforts to secede.

Here, too, we can read the unwritten principle springing to life in the 1860s narrowly or broadly. Read narrowly, the Fourteenth Amendment’s enactment process might seem to have nothing to say about the scope of the federal government’s power to directly conscript citizens into the army. After all, the army that oversaw the Fourteenth Amendment ratifi-cation process in the old South was a virtually all-volunteer army. But seen though a wider-angled lens, the enactment experience of the late 1860s does indeed help us understand why a national military draft is nowadays deemed permissible.

The Founding-era texts and original understandings provide only modest support for a federal draft. Although Article I empowers Congress to “raise and support Armies,” this clause was generally understood in the 1780s to authorize the raising of
volunteer
armies. Direct national conscription to populate the federal army was no more envisioned than, say, direct national conscription to populate the federal judiciary. Rather, the prevailing notion was that whatever military conscription might occur would take place through a militia system elsewhere outlined in Article I. (Similarly, Article III envisioned that judicial conscription might occur via a jury-duty regime that bore certain resemblances to the militia-duty system.)

In this militia system, states could train and organize militia conscripts according to rules laid down by Congress, and the federal government could summon these militiamen into national service whenever manpower was needed to execute the laws, suppress insurrections, or repel invasions. One notable libertarian safeguard for conscripted militiamen was a guarantee in Article I that state governments would choose militia officers, who would presumably be tied by various preexisting and postcombat social and political networks to the militiamen whom they commanded. Any direct federal draft would outflank this localist-libertarian safeguard, blurring the very distinction between an “army” soldier and a “militia” member as these constitutional words and concepts were widely understood by Americans in 1789.
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Consider also the preambulatory language of the Second Amendment. By declaring that “a well regulated Militia” was “necessary to the security of a free State,” the amendment appeared to proclaim that the militia, and not the army, was the nation’s constitutionally preferred defense structure. Any efforts to maneuver around the militia and its built-in localist-libertarian safeguards could plausibly be viewed as offending the animating spirit of this amendment’s preamble. Although the philosophy of
McCulloch v. Maryland
smiled upon congressional laws genuinely aimed at securing national defense, the case had also frowned on federal policies that dishonored the “spirit” of the Constitution or that were improper “pretexts.”

In the 1810s, direct national conscription was condemned as unconstitutional by no less a figure than Daniel Webster, but in the 1860s the party of Lincoln migrated to a different vision. Over the course of the nineteenth century, the word “army” in ordinary language had begun to shed its eighteenth-century connotations of a strictly volunteer force. In 1793, the world witnessed the first modern national draft—Revolutionary France’s
levée en masse
. But even in 1860, it was doubtful that military developments abroad—developments that the American people had never legally endorsed or voted to incorporate into America’s constitutional system—effectively authorized Congress to deviate from the basic meaning of key constitutional words such as “army” and “militia,” as these words had been understood by those who had ratified the original Constitution and Bill of Rights in the pre-Napoleonic era.
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Then came secession, which shattered the Founding vision. With so many state militias arrayed under Confederate banners, it seemed to many Americans that the Founding-era text’s smug confidence in state militias had been misplaced. Many faithful constitutionalists came to believe that, if the nation was to survive its darkest hour and win the war in the most direct way, a national draft might indeed be constitutionally “necessary” and not a mere “pretext,” as
McCulloch
had expounded these words. In 1863, Congress passed and President Lincoln signed into law a national draft of sorts.
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Nevertheless, Chief Justice Roger Taney readied himself to hold this law unconstitutional in the event that a proper judicial case raising the issue came before him. (It didn’t, and Taney’s draft draft remained in his desk.)
Because the 1863 law allowed individual draftees to buy their way out—by providing a substitute or paying a fee—many supporters claimed the law was technically a tax and not a system of direct conscription. Even after Antietam and the Emancipation Proclamation, the constitutionality of a pure system of national conscription remained doubtful.
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The constitutional doubts that lingered in 1863 should today be dispelled, thanks to the enactments of the Fourteenth and Fifteenth Amendments. These enactments simply could not have occurred without the vigorous and visible work of the Union Army under the First Reconstruction Act—also commonly referred to as the Military Reconstruction Act. Here was direct proof, via military measures inextricably intertwined with the very act of constitutional amendment and publicly endorsed by the American people themselves through the amendment process, that it was indeed “necessary and proper” for Congress to enjoy broad discretion in the raising and deployment of federal troops.
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True, by 1867, most draftees had been released from service. Thus, the army that oversaw Reconstruction was not a conscripted army. But neither was it the Founders’ vaunted militia. The high-profile deployment of the Union Army to guarantee a regime of true republican governments undercut the central ideological premise of the Second Amendment’s preamble: No longer could it be insisted that the localist militia was always America’s constitutionally preferred force structure to vindicate the Constitution’s deepest values and secure its most sacred principles. And without a heavy thumb on the militia pan of the balance scale, there would be no decisive reason to read Article I in a stingy way that would deny Congress broad discretion over the army’s basic organizational structure.

Nothing in the 1860s vision repudiated the Founders’ explicit written commands, even as this unwritten vision superseded earlier unwritten understandings. Nowhere did the Founders’ text
explicitly
provide that the army clauses should be construed narrowly lest they undercut America’s militia system. Nowhere did the Founders’ text
explicitly
bar a national army draft if such a draft were deemed necessary to execute the laws, suppress insurrections, or repel invasions. Nowhere did the Founders’ text
explicitly
say that every conscript must be officered locally. Rather, these things were arguably implicit in Article I as glossed by Amendment II.
These unwritten understandings should ultimately give way to a later principle of the unwritten Constitution celebrating the army as a proper engine of national defense and republican government.