What was the Fourteenth Amendment meant to do? According to Mark A. Graber, its congressional architects were dead set on entrenching Republican rule, disempowering former Confederates, and ensuring that the national government would benefit Unionist victors and veterans. In other words, the amendment was designed to reconfigure constitutional politics in service of the titular aims of this book: Punish Treason, Reward Loyalty. Graber’s volume is the first installment in a projected series recovering a “Forgotten” Fourteenth Amendment. By canvassing debates in the Congressional Globe under a range of Reconstruction-related headings, including discussions about readmission conditions that have not typically informed scholarly explication of the Fourteenth Amendment, this volume offers a novel guide to the rationales and principles behind Sections 2, 3, and 4, which constitute the heart of the amendment. This is a study of what members of the 39th Congress were reported to have said in floor speeches during its first session from December 1865 through July 1866. Constitutional discourse beyond the Globe’s reports is bracketed off except where petitions entered the record. This approach, at once broad and narrow, allows Graber to show beyond doubt that congressional Republicans spent a lot of time talking about how to solve the structural quandary of the white southern public’s reintegration into the federal constitutional system. That focus, Graber rightly observes, has been underrepresented in legal and historical scholarship that primarily attends to Section 1, original legal meanings, and civil rights.
Punish Treason, Reward Loyalty begins with congressional Republicans’ pivotal determination to exclude rebel state delegations, which opened the door to debating new constitutional guarantees. Graber traces how the specter of rekindled southern political might, bolstered by fully counting, for apportionment purposes, the region’s emancipated Black population, assumed particular forms—that civil rights legislation would become impossible, that southern states would exploit freedpeople with impunity, that ex-Confederates would persecute southern Unionists, that rebel representatives would impede war debt payments and aid to Union veterans, and that southern politicians would rule again through renewed alliance with doughface Democrats. Amid these fears, loyalty discourse saturated congressional speeches. Graber shows clearly how Republican members decided that they had to thwart rebel rule by empowering, protecting, and producing a loyal public. He also contends that northern Democrats welcomed loyalty as qualification but believed that freedpeople were disloyal due to enduring fealty to planters and that most southern whites were loyal already. Such rhetorical partisan symmetry can, perhaps, better be understood as a testament to the appeal of loyalty as a frame through which Democrats pursued other commitments (e.g., white supremacy) rather than as an honest disagreement. So, too, can Congressional Republicans be seen as mobilizing the power of loyalty discourse to realize other commitments (e.g., Black rights). Graber shows that they often treated Black and loyal as interchangeable terms, justified Black suffrage on loyalty grounds, and tucked rights advocacy alongside loyalty language.
For historians and constitutional scholars, this book is especially valuable in explaining how Congress confronted the anticipated evils of rebel rule in constitutional terms. It situates the development of specific political, financial, secession, and individual rights guarantees within the framework of punishing treason and rewarding loyalty. Drawing these strands together, Graber delivers a convincing account that the forgotten middle sections of the Fourteenth Amendment reflected a coherent Republican vision attempting to anticipate and reshape who would have national power. A truly helpful appendix summarizes congressional votes on key measures, references to loyalty and disloyalty in speeches, and proposed conditions for readmission.
To this important illumination of Republicans’ constitutional language and purposes, Graber attaches an ambitious revisionist argument: that because congressional Republicans were seeking power to punish disloyalty and reward loyalty, they were indifferent to Black rights and legal equality. A closing chapter makes this case by arguing that Republicans’ initial approach to potential Colorado statehood in 1866, when most were willing to accept a constitution disenfranchising Black men to gain additional Republican representation, proves that they “preferred empowering loyal whites to protecting the rights of African Americans” (14). Even more broadly, Graber claims that “civil rights guarantees for former slaves were no more central to Reconstruction and constitutional reform in 1866 than Osric is to Hamlet” (14). While internal differences appear as to whether Republican empowerment was an end in itself or a means to other ends, Graber casts Black rights as a dispensable means for elevating loyal white men over disloyal ones. In the most striking articulation of this argument, Graber rewrites Abraham Lincoln’s delicate, mid-1862 public letter on the relationship between emancipation and Union-saving to describe how congressional supporters of the Fourteenth Amendment viewed the relationship between Black rights and constitutional reform. “Our paramount object is to prevent rebel rule by empowering and protecting the loyal, and is not either to achieve or frustrate racial equality…. What we do about the colored race, we do because we believe it helps prevent rebel rule; and what we forbear, we forbear because we do not believe it would help prevent rebel rule,” insists the fictive letter (215, Graber’s emphases).
One can appreciate the significant contributions of Punish Treason, Reward Loyalty while questioning whether the book’s evidence requires such a revisionist interpretation. Take the discussion of Colorado. When the territory’s proposed constitution denied Black voting rights and even radicals such as Ben Wade advocated admission (which Johnson would veto), Graber sees a test case for Republican commitment to Black rights writ large. Yet political rights had traditionally been separate from civil rights, and as activism and circumstances persuaded many Republicans to join together these intertwined rights (for men), many speakers in the Colorado debate cast political exclusion as a temporary condition. Crucially, it is Graber’s choice to include this matter in his evidentiary universe for understanding the Fourteenth Amendment, but if such debates are probative, one would think that activity around the Civil Rights Act of 1866 (to be discussed in a future volume) would be relevant for assessing that commitment. The book’s method captures more about loyalty than it does about equality, and it interprets relative rhetorical frequency as evidencing priorities. Perhaps, however, loyalty discourse reveals that making structural constitutional changes restricting white representation required deliberative public justification; and perhaps it also demonstrates that loyal and rebel were found to be useful political keywords to utter, while the Republicans who fashioned the Civil Rights Act saw less utility in debating their shared commitments in the context of Section 1. More broadly, the single session under review limits necessary contextual and durational information for establishing the book’s revisionist claim. Assessing how congressional Republicans figured the relationship between political empowerment, loyalty, and rights during Reconstruction would seem to require looking outside Congress at campaigning and popular politics, looking back at the evolution of Republican ideology, and, especially, looking forward at how Republicans used power in view of their opponents’ agency. Indeed, Graber acknowledges developments on political rights that suggest instantaneous congressional rhetoric and votes can be an inadequate measure of commitments: A single sentence mentions that the 39th Congress, during its second session, passed bills requiring Black suffrage in Colorado and Nebraska, banning race discrimination in territories, and requiring universal suffrage in new states.
Graber’s revisionism makes Reconstruction’s fate a less complicated historical question. It argues that the post-Fourteenth Amendment United States—with no second secession and durable national control by loyal states—fulfilled original intent. Yet if this account makes failure easily explicable, then it raises a host of questions about why there was ever a struggle over Reconstruction. Alternatively, Punish Treason, Reward Loyalty can be read for new insight on one dimension of Reconstruction’s failings: the limited capability of the Fourteenth Amendment to configure politics in keeping with the aims of its authors. Republicans’ adaptative reliance on the West and eventual abandonment of the Black South in the face of empowered former rebels, along with the party’s own ideological evolution, reflect a constitutional politics that defied intentional constitutional design. Graber’s unfolding research on the Fourteenth Amendment helps us see the distance between original constitutional visions and what happened next.
