Learn Hardball

How Democrats Can Learn Hardball From the Republicans of 1861

Sometimes restoring democracy requires rewriting the rules.

By JOSHUA ZEITZ

If you’re looking for a historical example of a revanchist political minority that kept its foot on the neck of a growing and restive majority, look no further than the defenders of slavery in antebellum America. In the interest of keeping Black people in a state of intergenerational servitude, pro-slavery politicians in the antebellum period trampled flagrantly and frequently on the civil liberties not only of Black Americans, but of white people who opposed slavery’s expansion. They shut down the right of abolitionists to use the U.S. Postal Service and the halls of Congress to proselytize against the Peculiar Institution. They deployed violence and voter fraud to rig elections. To maintain property in human beings, they perverted the institutions of American democracy.

It wasn’t until the Civil War, when many of those pro-slavery politicians rebelled to fight for the Confederacy, that the anti-slavery Republicans had their chance to reverse the damage. And they did it by playing hardball.

With Southern Democrats absent from Congress and their northern pro-slavery allies reduced to a shadow of their former power, anti-slavery Republicans pursued a bold, majoritarian agenda that remade the nation in the North’s free-labor image. After decades of violent obstruction from the slaveholding minority, they exhibited little concern for traditions and niceties. From changing the size of the Supreme Court and adding new states to the Union (partly to pad their majorities in Congress and the Electoral College), to their refusal to honor the credentials of Southern congressmen-elect who were chosen in sham midcycle elections in 1865, the Republican Party of the 1860s used hard-knuckle measures to enact a sweeping constitutional revolution that established the foundation for liberties that Americans of all races enjoy today.

These Republicans of the 1860s weren’t angels. Their motives were not uniformly pure. And they didn’t always agree with each other. But in response to decades of anti-democratic incitement by white politicians from slaveholding states, who represented roughly just 25 percent of the country’s population in 1860, Republicans in the age of Lincoln and Grant united to make the rules work for the majority, even when doing so required rewriting the rules wholesale.

It’s the playbook Democrats today should follow if they win the White House and the Congress next week.

For several decades now, modern Republicans have used every tool at their disposal—voter suppression, gerrymandering, court packing at all levels, midnight bills to curb the powers of incoming Democratic governors, parliamentary chicanery that applies different rules to presidents of each party—to ram a minoritarian agenda down the majority’s throat. How else, after all, could a party that has lost the popular vote in six of the past seven elections—and which will likely lose the eighth, already in progress—wield so much power?

If a Biden administration and the Democratic Congress are to have any chance of leveraging the authority that voters may confer on them—if they truly want to enact and protect a popular, majoritarian agenda—they should look to an earlier generation of politicians that understood the uses of power and the ends to which it could be applied. That generation didn’t quiver in the face of established procedure and precedent—and neither should Democrats today.

Slavery was first and foremost a violent crime against African Americans. But it also eroded the country’s political and social fabric. In the three decades preceding the Civil War, pro-slavery Southerners and their supporters in the North had degraded democratic institutions and flouted the rights of everyone else—white and Black—in the service of preserving the Peculiar Institution. They imposed a gag rule in the 1830s, barring antislavery Northern congressmen from presenting abolitionist petitions in the House. They remanded that the Post Office bar the delivery of abolitionist literature. They crafted a highly unpopular Fugitive Slave Act in 1850 that required Northerners to be actively complicit in detaining Black persons accused of being runaway slaves, at penalty of trial and imprisonment. In the 1850s, after they nullified the Missouri Compromise that barred slavery in certain Western territories, they deployed violence and election fraud with impunity to ram a pro-slavery state constitution through the Kansas territorial Legislature. When Charles Sumner, the fiery Masachussetts politician, dared deliver an antislavery address in the U.S. Senate, a Southern congressman beat him nearly to death.

When, in a culminating moment, 11 Southern states decided to secede rather than accept the outcome of a free and fair election, Republicans finally enjoyed an opportunity to reinvigorate democratic institutions long been under assault by the “Slave Power” and pursue a bold economic and social agenda that established a foundation for the postwar world.

From 1861 to 1865, during the Civil War years, Republicans used their majorities to pass legislation authorizing the seizure of rebels’ land and slaves; the Homestead Act, granting federal land to American families who agreed to settle and improve it; the Land Grant College Act, which conferred on each state federal acreage to support the cost of establishing public universities; legislation funding the construction of a transcontinental railroad, which promised to draw homesteaders into a national market, but which also—tragically—set in motion the violent destruction of Native American communities everywhere the iron tracks took root; and laws abolishing slavery in Washington, D.C., and the territories—and, later, everywhere in the United States. In effect, the Civil War Republicans fundamentally altered the character of American life.

Despite their supermajorities in Congress and hold on the White House, Republicans left little to chance.

Fearing the federal judiciary, whose membership skewed conservative and pro-slavery, might invalidate their legislative agenda or limit President Abraham Lincoln’s ability to prosecute the war, in 1863, Republicans added a 10th seat to the Supreme Court.

There was strong precedent for doing so. As the country admitted new territories as states, it required additional federal circuit courts. In 1807 and 1837 Congress had enlarged the Supreme Court to keep the number of justices on par with the number of appellate courts, a practice that reflected the justices’ dual function as chief circuit judges. During the Civil War, with the population of California and other Western states growing at a steady clip, Republicans saw an opportunity to justify the creation of a new circuit and, thus, a 10th seat on the high court. But principle converged closely with politics. The court was scheduled to consider a case challenging the Union’s blockade of the Confederacy; if the justices ruled against Lincoln, their decision threatened to cripple the war effort. They intended to pad their slim majority.

The governing party also restructured the shape of the circuit courts to dilute the influence of pro-slavery judges and create new vacancies for Lincoln to fill, with the advice and consent of the Republcan-controlled Senate.

In other ways, too, Lincoln and his congressional allies threw sharp elbows. In 1864, the president introduced his Ten Percent Plan, which extended an offer of amnesty to all Southerners who would pledge allegiance to the United States and invited any state that could muster up enough such loyal men, equal to 10 percent of those who had voted in 1860, to form a new state government and send representatives to Congress. Radicals introduced their own plan, which required a 50 percent threshold and a stronger, “iron-clad” oath that few Confederates could meet, but Lincoln pocket vetoed their bill. He wanted a lower bar for readmission, not because he was soft on treason, but to foster political dissent and chaos behind enemy lines. He also wanted to create (on paper, at least) newly reconstituted Southern states—led by men loyal to the Union—that could cast Electoral College votes for the Republican ticket and help ratify the 13th Amendment abolishing slavery. Ultimately, the reconstituted but hardly reconstructed states of Louisiana, Tennessee and Arkansas—which were readmitted under Lincoln’s terms—approved the abolition amendment before the president’s death.

In the same way, when the western counties of Virginia—largely populated by white yeoman farmers who held the state’s slaveholding elite in bitter contempt—declared their independence from the Confederacy, congressional Republicans passed legislation, which Lincoln signed, admitting them as the new state West Virginia in 1863. A year later, they made the sparsely populated Nevada territory a state. Thus the party gained four new U.S. senators, a reliable slate of presidential electors and a support for a broad assault on slavery.

Lincoln’s death complicated matters. In what was surely his worst decision in public life, the president had replaced Vice President Hannibal Hamlin, a reliable antislavery politician, with Andrew Johnson, a deeply insecure white supremacist from Tennessee who had remained loyal to the Union, but whose sympathies lay with his native South. The next four years witnessed acrimonious conflict between a revanchist, racist president and a Republican supermajority that repeatedly overrode his vetoes and governed over his head.

Between Lincoln’s death in April 1865 and the opening session of the new Congress that December, Johnson unilaterally readmitted Southern states and invited them to hold elections. This, despite their widespread enactment of “Black Codes” that reintroduced slavery in all but name—impressing free Black children into “apprenticeships,” proscribing the right of Black persons to free expression and assembly, barring ex-slaves from owning guns and compelling them to sign labor contracts that bound them to their former owners. Adding insult to injury, the Southern states sent a slate of prominent ex-Confederates to Congress, including Alexander Stephens, the former Confederate vice president who arrived in Washington that winter as a senator-elect from Georgia. In Johnson’s mind, the war was over and slavery dead, at least on paper; the rebellious states should be welcomed back to their prior relationship with the federal government immediately.

But congressional Republicans viewed matters otherwise. They saw an unreconstructed minority refusing to accept its defeat. On December 4, 1865, amid widespread anticipation of the impending political crisis, the newly arrived members of the 39th Congress descended on the Capitol for the opening session. At noon, the House clerk, Edward McPherson, a former two-term congressman and protégé of Thaddeus Stevens, stepped up to the rostrum and gaveled the House into session. Stevens, “the radical leader, if not dictator, of the House,” by one member’s estimation, served as chairman of the Ways and Means Committee, a position akin in the 1860s to majority leader. An uncompromising opponent of slavery and unforgiving foe of slaveholders, he cut an austere figure. Stevens instructed McPherson to skip the names of the Southern members-elect as he read the roll call. When a Northern Democrat rose to intercede on behalf of Congressman-elect Horace Maynard of Tennessee, Stevens replied tartly that all motions were out of order pending election of a new speaker. “I cannot yield to any gentleman who does not belong to this body—who is an outsider,” he remarked. The House flat-out refused to accept the credentials of the Southern members-elect, as did the Senate. The non-congressmen packed up their bags and went home.

Over the next 3½ years, the Republican Congress overrode Johnson’s vetoes to enact legislation enshrining civil rights for freedmen and splicing the former Confederate states into five military districts. Until Southern states accepted the 13th Amendment abolishing slavery and the 14th Amendment, establishing a broad swath of civil rights for all natural born citizens, including freedmen—and until they established new state governments on the basis of universal male suffrage—they would remain under martial law and go unrepresented in Washington.

Republicans invoked a number of justifications for their procedural and policy measures. Stevens held that the Confederate states were “conquered provinces” whose citizens had forfeited their citizenship rights. Charles Sumner, the radical senator from Massachusetts, held that Southerners had committed “state suicide.” But most Republicans hung their hats on a section of the Constitution that “guarantee[s] to every State in this Union a Republican Form of Government.” If loyal white persons and Black freedmen were denied their right to property, free expression and assembly—if elections were marred by fraud, violence and disenfranchisement—Congress had an obligation to intervene on their behalf.

Governing in opposition to Johnson, the Republican supermajorities in Congress bent the system as far as it would go. Fearing the new president might pack the judiciary with loyalists, in 1866 they once again changed the composition of the Supreme Court, eliminating three seats by means of attrition. The next three vacancies would go unfilled until the number of justices fell to seven, thus depriving Johnson of the power to appoint anyone to the bench. (In 1869, after Republican Ulysses S. Grant assumed the presidency, they reset the number of justices at nine, where it remains today.) They passed a constitutionally dubious act barring Johnson from dismissing Cabinet officials without congressional approval, a measure intended to protect radical War Secretary Edwin Stanton, who effectively administered the Army’s occupation of former Southern states.

In 1867, Republicans admitted another reliable western state—Nebraska (1867)—and in so doing, gained new senators and electoral votes. Beginning in the 1870s after Johnson left office, but as their hold on power began to slip, they granted statehood to a trove of thinly populated but (at the time) reliably Republican territories: Colorado, North Dakota, South Dakota, Montana, Idaho and Wyoming. They did so out of concern that the very rebels who had, in recent memory, raised arms against their country would soon regain control of the federal government.

Remarkably, these bare-knuckle mean and ends were broadly popular. In 1866, the GOP swept off-year elections, bolstering its capacity to govern over Johnson’s head. Equally of note, the party—a hotchpotch coalition of former Whigs, Democrats, Free Soilers and Know Nothings, which had been a party for only 10 years—remained fundamentally unified. Despite their pronounced differences over policy and politics, moderates like Henry Raymond and William Pitt Fessenden worked in lockstep with radicals like Stevens and Sumner. With the exception of Andrew Johnson’s impeachment trial, in which several moderates broke ranks and voted to acquit the president, on every critical vote—the Civil Rights Act of 1866, the Freedmen’s Bureau Bill, the Reconstruction Act of 1867, and the 13th, 14th and 15th Amendments to the Constitution—the alliance held.

For many years, Americans remembered Reconstruction as a failed experiment, at best—a “Tragic Era,” at worst, an “Angry Scar.” Its violent overthrow by white Southerners betrayed the early economic and political advancements of millions of freedmen who, for a brief moment in time, experienced self-government and a free labor economy, until the onset of Jim Crow stamped out their gains.

Since the 1960s, however, historians have acknowledged the era for its more lasting, if gradual, revolution. The Reconstruction amendments not only forged a basis for civil rights legislation in the 1960s, and for the legalization of abortion and marriage equality in subsequent decades. From the 1920s onward, the Supreme Court used the 14th Amendment to “incorporate” the Bill of Rights and extend its federal guarantees to the states. If you’re glad that the state of Texas or Florida is bound to respect your rights to free expression, speech and religion—your right not to incriminate yourself or face unlawful search and seizure—you have the Reconstruction-era Republicans to thank.

To be sure, we’re not living in the shadow of a Civil War. As bad as things are, they’re nowhere near as violent or divisive. But the parallels to our own era are striking. For well over a decade, Republican politicians at the state and federal levels have feverishly assaulted democratic norms and processes to advance a hard-hitting minoritarian agenda—the abolition of reproductive rights, dismantling of the Affordable Care Act, deregulation of environmental and safety standards, tax cuts for corporations and the wealthiest Americans—that is deeply unpopular. They know it’s unpopular. Which is why they’ve made it harder for people to vote; manipulated Senate rules to hold judicial seats vacant under Barack Obama, only to fill them under Donald Trump; incited domestic terrorists and extremists—Proud Boys, QAnon fanatics, the Klan and neo-Nazis—to meet lawful political assembly with violence. The president has openly flirted with nullifying the election if he doesn’t like the results. Indeed, the pro-slavery zealots of 1860 could hardly have done it better.

Democrats, should they earn a governing majority, may soon have an opportunity to restore and improve the institutions that a minoritarian party has broken piece by piece over so many years. If so, the lessons of the Reconstruction era are clear: You can’t achieve the ends if you don’t embrace the means.

To pass elements of the "Green New Deal" or protect and expand the ACA, Democrats might need to dismantle the filibuster, an anti-majoritarian instrument that threatens to scuttle the expressed will of the voters. They might have to unpack the federal courts and expand the Supreme Court by four seats, thus returning to the original standard of one justice per circuit. They’ll surely want to admit new states—Washington, D.C., and Puerto Rico, perhaps other territories—to the Union, not just because doing so will enlarge the Senate and Electoral College, but because it extends democratic rights to disenfranchised Americans who live in those place. They might even consider expanding the size of the House of Representatives to recalibrate the ratio of those governing to those being governed.

Taking a cue from Thaddeus Stevens, Democratic majorities in the House and Senate should refuse to seat members-elect whose claim to sit in Congress is compromised. In close congressional elections, if uncounted ballots lay piled up in U.S. Postal Service sorting centers, or hundreds of people were unable to vote due to 12-hour-long lines and the arbitrary rejection of absentee ballots, Nancy Pelosi and Chuck Schumer can and should invoke the constitutional guarantee of a “republican form of government.” Make the offending states hold new elections—this time, properly.

If the Supreme Court—with Amy Coney Barrett newly installed—cancels out a narrow but clear Joe Biden victory by ordering officials in Pennsylvania to throw out ballots that were postmarked before, but arrived after, the election, Congress should accept the competing slate of electors that the governor, a Democrat, certifies. If state officials in Georgia repeat their egregious efforts to suppress the votes of Black citizens, the House and Senate should throw out Georgia’s entire slate of presidential electors. They should take these measures even if Biden wins the requisite 270 electoral votes elsewhere, to send a clear message: The era of minoritarian rule is over.

Biden, should he occupy the Oval Office, should appoint judges who support a reinvigoration of the Reconstruction amendments, particularly the 14th Amendment’s clause stipulating that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Intended by its framers to create a robust federal guarantee of civil rights, the clause fell into disuse in later decades, the victim of an increasingly reactionary Supreme Court that willfully abnegated its purpose. As historian Eric Foner argued in his recent book The Second Founding, there is no reason why it shouldn’t be excavated. A rising generation of 14th Amendment “originalists” might use it to address all manner of issues, from cash bail and police excesses to environmental standards.

Few politicians in American history have understood the uses and ends of power as well as the congressional Republicans of the 1860s. Faced with an existential threat to American democracy, they stared down a violet and revanchist minority and summoned authority earned at the polls to expand the very meaning of citizenship. If next week’s elections go their way, that’s the lesson Democrats should take away.