Reconstruction and the Pursuit of ‘Loyal’ Governance

No period in American lawmaking has been subject to more continuous revision than Reconstruction, and in “Punish Treason, Reward Loyalty,” Mark A. Graber launches a three-volume series that aims to upend conventional wisdom about the framers’ 14th Amendment. Whereas Section 1 is generally regarded as the heart of the amendment, Graber argues that its framers were “relatively indifferent” to rights (Rep. John Bingham excepted). The aim of the amendment, he contends, was instead securing Republican political power via the provisions of Sections 2, 3, and 4.

Graber has been a notable contributor to public debate over the disqualification of Donald Trump from the presidency under Section 3, arguing in multiple outlets that Trump’s actions related to Jan. 6 met the terms of that section. “Punish Treason, Reward Loyalty” says surprisingly little about the language and machinery of Sections 2, 3, and 4, linking them in only schematic terms to the goal of securing “loyal” Republican governance.

The book’s main relevance for a Lawfare audience lies in its treatment of the Civil War, which was triggered by a rebellion, and Reconstruction, which is often understood as a battle over the definition of freedom but was likewise a struggle to define the war’s issues and to establish requirements for domestic security at a time when political and racial arrangements were often enforced through violence. Analogies to the Civil War and Reconstruction have blossomed in the wake of Jan. 6, making narratives about that crucial period a feature of Trump-era politics. More broadly, the history of the 14th Amendment offers important insights on the problems of constitutional democracy.

If “lawfare” can refer to use of the legal system to achieve political objectives, Graber’s new book brings vital attention to constitutional design as lawfare. He argues persuasively that the framers of the 14th Amendment were deeply invested in structuring rules for apportionment and office-holding so as to secure “loyal” rule. At the same time, however, Graber reduces the significance of the 14th Amendment to constitutional design. According to Graber, the framers of the 14th Amendment had “no intention” to limit government via the rights guarantees of Section 1 and were unconcerned with questions of constitutional meaning (what he calls “constitutional law”). What mattered to the framers, he argues, was the constitutional design of political institutions via Sections 2, 3, and 4 (what he calls “constitutional politics”). The operative (realist) logic is that dominant political parties control governing institutions and possess constitutional authority, and if you are on the wrong side of “partisan supremacy,” rights guarantees are mere parchment barriers. On this view, the Constitution functions not through the specification of rights and remedies but, rather, through the design of governing institutions, which in turn configures political rule. 

Graber’s attention to constitutional design is an invaluable corrective to the relentless focus of most constitutional lawyers on rights. I will suggest, however, that his reduction of the Fourteenth Amendment to constitutional design is a mistake, both historically and conceptually.

Graber’s Historical Revisionism

Graber’s revisionism joins that of Mark Wahlgren Summers in arguing that Black rights are commonly, but wrongly, viewed as central to Reconstruction. In the Summers/Graber view, that error has produced the conclusion that Reconstruction failed. According to Graber, once it is understood that “proponents of congressional action on Reconstruction” were “far more concerned” with entrenching loyal rule than with “free labor, racial equality, or some notion of fundamental human rights,” the efficacy of the Amendment can be reassessed.

Judged by the primary goal of thwarting rebel rule, Graber argues, Reconstruction secured important successes: “Southerners made no attempt to secede after 1865, representatives from the Union states controlled the national government for the next hundred years, and all the provisions of Section 4 were scrupulously honored.”

 As for why congressional Republicans (except Bingham) were relatively indifferent to rights, Graber points to their “pre-Civil War goals.” “[M]ost proponents of congressional Reconstruction,” he contends, “were fixated on the slave power rather than on slavery per se.”

 In this regard, Graber “de-centers racial equality” and explicitly embraces Derrick Bell’s interest-convergence thesis. He argues that congressional Republicans (with some Radicals excepted) saw equal “civil rights” and the Civil Rights Act of 1866 as important only to the extent that they converged with the interests of loyal whites. In Graber’s formulation, “[p]rotecting and empowering the loyal to prevent rebel rule did not require a new birth of freedom”; loyalty repeatedly “trumped racial equality.”

Historians of Reconstruction have long portrayed the Centrist Republicans’ eventual embrace of Black suffrage as based largely on pragmatic grounds (e.g., Foner 1988), though Lincoln applauded limited Black suffrage on principled grounds in April 1865. Graber’s application of interest-convergence in this regard is not novel. But Graber attributes to Republicans pragmatic support not just for the Black vote but for all Black rights, including the “civil rights” specified in the Civil Rights Act of 1866. His portrait of Centrist Republicans in 1866 as pragmatic (versus principled) supporters of the Civil Rights Act of 1866 is a breathtakingly sharp departure.

The signal contribution of “Punish Treason, Reward Loyalty” lies in its unified attention to the middle provisions of the 14th Amendment and its presentation of exhaustive evidence of the framers’ concern to secure Republican political rule via the design of political institutions.

The difficulty, however, is that evidence of this concern is packaged by Graber into exceedingly strong, binary claims that await necessary support. It is one thing to argue that the framers of the 14th Amendment viewed the citizenship and rights clauses of Section 1 as desirable or necessary but not sufficient for reconstructing and securing the Union, and that sufficiency entailed the design of governing institutions at the state and national levels so as to empower the “loyal,” as Republicans defined loyalty. Those claims could be well supported given existing evidence (e.g., Benedict 2006) and Graber’s new evidence, and such claims would correct the tendency of constitutional lawyers to focus exclusively on rights.

 But that is not the route taken by Graber. Rather, his deeply revisionist arguments are that Republican framers in 1866 cared about institutional design, not rights; cared about loyalty, not racial equality; and saw Republican political power as the only required reform. These claims outrun his evidence.

The obstacles to these either/or claims—and the reasons why it is a mistake to reduce the framers’ “lawfare” to constitutional design—can be grouped under three headings: sources, sequences, and Graber’s treatment of “racial equality” as a dichotomous concept.

Sources

Graber’s single source in this first volume of the promised trilogy is the record of the 39th Congress as reported in seven months of the Congressional Globe (December 1865 to July 1866). Arguing that scholars have focused too narrowly on select sections of the Globe, he identifies sections relating to the readmission of ex-Confederate states as relevant to the 14th Amendment. Graber’s use of this wider net is valuable, as it brings to light the framers’ concern with securing “loyal” governance via new constitutional rules on apportionment and office-holding.

 But several concerns call into question the capacity of the Globe to support Graber’s claim that Republicans were concerned not with rights and remedies but with party power.

First, the Joint Committee on Reconstruction was a kind of “congressional cabinet” that investigated Southern conditions and formulated Reconstruction policy (Hyman and Wiecek 1982, 312; Nelson 1988, 48-50). Its members did their work behind closed doors and they left no record of their discussions. The Joint Committee was part of the postwar rise in the committee system whereby Congress moved business into committee rooms, as Harold M. Hyman and William M. Wiecek have explained in “Equal Justice Under Law.” As policymaking moved behind closed doors, floor debates declined in significance. The crucial and inaccessible communication within the Joint Committee troubles Graber’s exclusive reliance on the Globe.

 So too does scholarship on “buncombe” (or “bunkum”) speeches in the Congressional Globe. Examining the character of the Globe as a historical archive, Rachel Shelden has recently shown that the Globe contains a significant amount of “buncombe,” that is, statements that were not actually part of floor dialogue but, rather, were later inserts, intended for newspapers and constituents back home.

 Graber takes the volume of references to the prevention of “rebel rule” as indicating its privileged status in congressional debate. But if many of those references were “buncombe,” they do not provide evidence of actual deliberation. Indeed, Graber himself notes the tendency of Republicans to engage in “parallel play” rather than responding to each other’s statements, an indicator perhaps of “buncombe” speeches.

 There is likewise a substantial literature that cites and investigates the many statements of Republicans (not just Bingham) on rights secured by the 14th Amendment (e.g., Aynes 1993; Benedict 2006; Curtis 1986). Perplexingly, Graber fails to address that literature. The snapshot of the 39th Congress, moreover, obscures a multitude of sequences that pose obstacles to his claims.

 Sequences

 Historians’ accounts of Reconstruction are often about sequences. Their narratives are structured by back-and-forth dynamics between Southern recalcitrance and Republican reforms. Rich accounts of such sequences include the classic work of Harold M. Hyman, “A More Perfect Union,” and that of Hyman and Wiecek, “Equal Justice Under Law,” which contains the important chapter “The Fourteenth Amendment in the Light of the Thirteenth.” Sequence plays little if any role in Graber’s account, putting offstage a body of evidence that undermines his binary assertions.

 One sequence begins with the ratification of the 13th Amendment in 1865. Graber argues that Republicans in 1866 viewed the 13th Amendment as sufficient “constitutional law” for authorizing Black freedom rights, rendering Section 1 unnecessary. 

The 13th Amendment, however, quickly encountered the buzzsaw of Southern ratification politics and decisions in Southern and mid-Atlantic courts, which advanced and fortified restrictive interpretations of that amendment. These developments damaged the 13th Amendment as constitutional authority. During the ratification process, for example, President Johnson assured the ratifying bodies of its narrow purpose, as did even its state-level supporters (Edwards 2015, 87-89; Vorenberg 2001, 221-233). Later, a New York Supreme Court decision of March 1866, in a case involving a landlord-tenant dispute and a claim of involuntary servitude, interpreted the amendment to forbid only formal property in persons, that is, the “absolute control of the person and services of another.” Delaware’s high court ruled the Civil Rights Act of 1866 unconstitutional insofar as it required Black testimony in state courts, a ruling that presented the need to constitutionalize the act of 1866 with Section 1. (See “Equal Justice Under Law,” 427-431, and its discussion of Black testimony as a civil rights issue, 328-330.)

And one might surmise that information about these developments got to the Joint Committee. Accompanying the rise of the committee system was an “impressive growth” in the gathering of information (“Equal Justice Under Law,” 310).

So deep was Republican consensus about equal “civil rights” in the Civil Rights Act of 1866 as necessary for Black freedom that little speechmaking was required for a Section 1 countermove. A lesser volume of speeches tying Section 1 to “civil equality” (compared to speeches relating to Sections 2 and 3) is interpretable as evidence of consensus, not lesser priority. Moreover, many Republicans who wanted to overturn Dred Scott’s citizenship ruling did not see the 13th Amendment as affecting Northern states’ power to confer and define citizenship (Vorenberg 2001, 222). Section 1 was therefore needed to establish birthright citizenship across the nation. The re-enactment of the Civil Rights Act of 1866 as 14th Amendment legislation in the Enforcement Act of 1870 serves as powerful evidence that mainstream Republicans saw the 13th Amendment as unreliable. The authorization of the Enforcement Acts of 1870 and 1871 under the 14th (and 15th) Amendments, not the 13th, reinforces that conclusion. Together, this sequence calls into question Graber’s assertion that Republicans viewed the 13th Amendment as adequate constitutional law for their purposes.

The midterm elections of 1866 form part of another sequence in which the 14th Amendment was embedded, one that again challenges Graber’s central argument. After President Johnson vetoed the civil rights bill of 1866, which Congress enacted over his veto, Johnson made the 1866 midterm elections a referendum on the Civil Rights Act and the 14th Amendment (Foner 1988). Johnson badly misjudged Northern voters. Despite all the misinformation spewed by Democrats, the Republicans’ big electoral victory showed that the Northern electorate associated the equality provisions of the Civil Rights Act of 1866, newly constitutionalized by the 14th Amendment, with the meaning of the Union victory.

Source material pertaining to the stakes attached by Republicans to the 1866 election would seem relevant to assessing their priorities, especially since the most crucial records (of the Joint Committee) are unavailable. Graber, however, stops the evidentiary clock at the conclusion of the 39th Congress in July 1866, before the 1866 midterms.

Related sequences pertaining to the framers’ assessments of dangers to domestic security in the fragile postwar nation also prove hard to square with Graber’s thesis. Graber claims that Republicans in 1866, like those in the pre-Civil War era, saw danger in the slave power, not slavery per se; hence, they were little concerned about freedom rights. However, in 1854 (when the Republican Party was founded), the Union had not yet been torn apart; Northern families had not yet been touched by massive loss of life; enslaved people had not yet fled en masse to Union lines; and Black soldiers had not yet fought with distinction in Union regiments.

Even before the Civil War, moreover, the free states witnessed a widely known movement for racial equality in “civil rights” (Jones 2018, Masur 2021). As shown by Kate Masur, many prominent Republicans who served in the 39th Congress were active participants in that movement. Their long-standing concern with racial equality in “civil rights” informed their response to the Black Codes of 1865-1866. The “slave power” was thus not their only concern. 

Furthermore, it had become apparent by 1866 that the Republicans’ slave-power analysis had misjudged free white labor in the South. The slave-power analysis cast most white Southerners as disadvantaged by slavery and duped into supporting Southern elites (Foner 1995 [1970], 119-120, 207-209). What flowed from that critique, importantly, was the expectation that ordinary white men in the South would turn on Southern elites.

But that expectation proved unfounded. As information accumulated rapidly about ordinary white men’s acts of violence and intimidation against Black men and women, white Republicans, Freedmen’s Bureau officers, and Union soldiers, Centrist Republicans updated their slave-power critique (Brandwein 2000). In the 39th Congress, Rep. Elihu Washburne, a member of the Joint Committee on Reconstruction, led an investigation of the three-day racial massacre in Memphis (May 1-3, 1866). In tandem with Washburne’s Report of July 25, 1866, which repeatedly identified the failure of civil authorities to punish the perpetrators, General Ulysses Grant’s widely publicized General Order #44 of July 1866 authorized military trials for persons accused of state or local offenses against whom civil authorities failed to act. Viewing the rebellion as ongoing, these tandem actions were a response to President Johnson, who in April had declared the rebellion suppressed and ordered a halt to Army and Freedmen’s Bureau trials of civilians in the South (Hyman and Wiecek 1982, 327-328, 422).

A federal civil structure to redress the pervasive failure of state authorities to punish racial and political violence was established in 1871 under the 14th Amendment by the 41st Congress, in which nearly all the members of the Joint Committee continued to serve. (Of the 12 Republicans on that committee, nine served in the 39th, 40th, and 41st Congresses: Thaddeus Stevens died in 1868; Sen. Ira Harris lost his seat to Roscoe Conkling, who was already on the committee; and Rep. Henry Blow declined to run for reelection.) Washburne’s Report in the 39th Congress was thus part of a sequence in which framers of the 14th Amendment elaborated their view that redressing state failure was part of the war’s settlement and authorized by the Equal Protection Clause.

The ex-Confederate states’ refusal to ratify the 14th Amendment spurred further updating of Republicans’ understanding of the slavery problem, generating Centrist support for the Military Reconstruction Act of 1867. That sequence is likewise vital for understanding the 14th Amendment.

The Two 14th Amendments

 There were, in fact, “two” 14th Amendments. The first was passed by the 39th Congress and put forward as the threshold for Southern readmission. The ex-Confederate states, however, refused to ratify the amendment. In response, Republican framers passed the Military Reconstruction Act of 1867, which required Black suffrage in the South and set new rules for readmission. It was this reconfigured electorate in the South that ratified the amendment. It was thus the “second” 14th Amendment that became part of the Constitution in 1868.

 Graber relies on debates about the admission of Republican-governed states that did not provide for Black suffrage, such as Tennessee and Colorado, to support his claim that Republicans cared about loyalty, not racial equality. But those debates took place in 1866, during the period of the “first” 14th Amendment. Graber does not take account of the Military Reconstruction Act of 1867 and the “second” 14th Amendment it effectively created. The 1867 act was authorized by what Massachusetts Republican Richard Henry Dana called “grasp-of-war constitutionalism,” which held that “the conquering part may hold the other in the grasp of war until it has secured whatever it has a right to require.” Grasp-of-war constitutionalism did not apply to Tennessee, which ratified the “first” 14th Amendment, or to Western states such as Colorado, since they had not made war upon the Union. Grasp-of-war constitutionalism, therefore, could not authorize Black suffrage in these states.

 It could, and did, in the ex-Confederate states that refused to ratify the “first” 14th Amendment. In the 1867 act, the framers provided for Black suffrage (by statute) in those states as part of a new set of conditions for readmission. Black political equality thus went hand in hand with establishing loyal governance, undermining Graber’s claim that framers sacrificed Black equality in the pursuit of loyal governance.

 The notion of the two 14th Amendments possesses significance beyond its relevance as a critique of Graber’s argument, as historical accounts conventionally attribute to the 15th Amendment alone direct support for Black suffrage. In fact, the second, ratified 14th Amendment was tied irreducibly to the requirement of Black suffrage in the South.

 At the same time, the ratification of the 14th Amendment spelled the (near) end of military-enforced justice. The Ku Klux Klan Act of 1871 provided for martial law, and President Grant used it to restore order in South Carolina, a hotbed of unpunished racial and political terror that began across the South in December 1865, quickly reaching massive proportions, and often associated with Black voting (see the entries on the “Ku Klux” and “elections” in the Index of the 1871 Congressional Report on Southern Outrages, p. 425, and “Documenting Reconstruction Violence”). The investigation of the Memphis massacre in the 39th Congress was a signal event in the framers’ process of elaborating their understanding of “equal rights” and providing for civilly enforced justice at the federal level.

 Graber dismisses the clauses of Section 1 as “vague phrases” (xxxiii). But in these sequences, which link events before and after the passage of the 14th Amendment, we find framers elaborating their understanding of the “equal protection of the law.” Of the 41 Republican senators in the 39th Congress, 27 served in the 40th and 41st Congresses (see the congressional directories). Rep. Washburne, who headed the investigation of the Memphis massacre in the 39th Congress, likewise continued to serve.

 In these subsequent Congresses, the Senate created a Select Committee to Investigate Outrages in the Southern States in January 1871; in March 1871, a joint select committee was established to do the same, and it published a 13-volume report on brutal and unpunished racial violence by the Klan.

 That effort prompted expansive deliberation over the meaning of “equal protection of the law.” To offer but one example, Rep. (and future President) James Garfield explained that “the chief complaint” supporting enactment of the Ku Klux Klan Act of 1871 was “not that the laws of the State are unequal, but that even where the laws are just and equal on their face, yet, by a systematic maladministration of them, or a neglect or refusal to enforce their provisions, a portion of the people are denied equal protection under them” (Cong. Globe, 42nd Cong., 1st sess. 153, 1871).

 The Centrists’ elaboration of equal protection was principled, as Michael Les Benedict has shown, even as they sought to wind down grasp-of-war constitutionalism. 

Reconstruction’s Pace and Its Successes and Failures

Importantly, Centrists and Radicals long disagreed over the pace of Reconstruction and the use of the army. Centrists held the balance of power, and they wanted to hurry Reconstruction; Radicals wanted to go slowly and use the military (Hyman 1975). Southern rejection of the 14th Amendment and massive unpunished violence slowed down the Centrists and undergirded compromises for temporary military mechanisms. As shown by various scholars, military institutions provided the best hope for justice and loyal governance at the time (Downs and Masur 2015, Pino and Witt 2020).

Intramural contests over the pace of Reconstruction and use of the army go untreated by Graber, who presents the split between Presidential and Congressional Reconstruction as the only relevant fault line for understanding the framers’ 14th Amendment.

Yet these intramural disagreements, which pointed to the political impossibility of a sustained military presence in the South, suggest that the middle provisions of the 14th Amendment were weak and could not do the job of sustaining loyal Republican governance in the South. Democrats were unequally enforcing the law and regaining power in “redeemed” states; massive violence was overwhelming a nascent federal bureaucracy; and Republicans could achieve but a temporary victory over the Klan in the Carolinas. Graber presents the Republicans’ structural priorities as successful, but there is substantial evidence that Sections 2 and 3 did not work. Franita Tolson identifies Section 2 as an effort to redesign Congress, and she demonstrates that Section 2 did not work, even in the 1890s after Southern states passed disenfranchising constitutions.

Indeed, a puzzling aspect of “Punish Treason, Reward Loyalty” is Graber’s argument that the Republicans were successful in designing “loyal” governments. He counts that goal as largely successful because there were no more secessions, the rebel debt went unpaid, and representatives from loyal states controlled the national government for subsequent generations. 

The first two goals, however, were main features of the War Democrats’ Reconstruction program (Presidential Reconstruction) and the lowest common denominator shared by the programs of the War Democrats and the Republicans. These goals, therefore, should not be counted as “Republican.”

Regarding Graber’s third criterion for Republican success, the underpopulated Western states certainly buttressed Republican political strength at the national level, but evidence indicates that the Republican Party by the turn of the 20th century had morphed, for a variety of reasons. Representatives from the Union states controlled the national government. However, the Republican Party of President McKinley in 1896 was not the Republican Party of the 39th Congress. The worldview and policy pursuits of the party had changed significantly (Calhoun 2006). 

Providing a fourth criterion for Republican success, Graber argues that “however horrible the condition of free Blacks in the late nineteenth century, that condition was far better than slavery” and attributable to the Republicans’ structural success at preventing “rebel rule” (217).

 The difficulty with this argument is that War Democrats and their successors had their own Reconstruction project and that conditions facing Southern Blacks in the late 19th century are arguably attributable to “loyalty” as defined by War Democrats. Reconstruction is typically framed as a Republican project, but the War Democrats had their own Reconstruction program, which conceded formal emancipation and de minimis property rights. The loyalty of Ben “Pitchfork” Tillman and James Vardaman, who accepted these concessions, was not loyalty as defined by 1866 Centrists.

The dominance of the War Democrats’ successors in the Jim Crow era, which witnessed lynch law, economic subordination, and Black disenfranchisement, interrupts Graber’s assertion that late-19th-century conditions for Blacks reflected the success of the framers’ 14th Amendment.

I note one final sequence, and it pertains to Graber’s minimization of the importance of Section 1. As I discuss in a recent article, scholarship on Reconstruction routinely assumes that classical liberalism structured the relationship of free persons to state governments from the founding era. As I show, atomistic rights individualism does not appear in constitutional law until after the Civil War, via a reorganization of police powers jurisprudence in Justice Joseph Bradley’s Slaughterhouse dissent. If a transformation of liberty and rights discourses had been underway prior to 1873, as it surely was, then debate pertaining to Section 1 becomes a site for the emergence of atomistic rights individualism, thus taking on new and major significance.

The Concept of “Racial Equality”

Graber claims that the framers of the 14th Amendment cared about loyal governance, not racial equality. That claim rests on a dichotomous concept of equality—either wholly present or wholly absent—that is problematic.

Contrary to this on/off concept, a substantial body of historical evidence identifies a historical approach to racial equality that differentiates among realms of society: the economic, the political, and the social. A distinct category of rights was associated with each realm.

 Historians of Reconstruction identify the civil/political/social typology as providing the vocabulary by which political actors debated the dividing line between slavery and freedom (Belz 1976, Edwards 2015, Hyman & Wiecek 1982, Masur 2010). Importantly, the scope of equality deemed necessary for Black freedom was contested. For Centrists in 1866, equal “civil rights” in the Civil Rights Act of 1866 were the dividing line between slavery and freedom; Centrists in 1866 rejected the claim of Radicals that equal “political rights” were also necessary for Black freedom. Centrists came to accept that position.

The civil/political distinction upsets Graber’s binary claim about loyalty-over-racial-equality for the framers of the 14th Amendment. That claim is undermined by the 13th Amendment sequence noted above (i.e., the buzzsaw of Southern and mid-Atlantic reception), coupled with evidence from Masur (2021) indicating that many prominent Centrists had been active participants in the antebellum movement for “civil rights,” as defined in the rights typology, and as protected in the Civil Rights Act of 1866. They did not in 1866 support “political equality,” but their principled support for “civil equality” had been long-standing.

The “civil rights” category also structured the disputes between Republicans and War Democrats over the Civil Rights Act of 1866. For War Democrats, exemplified by President Johnson, formal self-ownership and a modicum of property rights marked the dividing line between slavery and freedom. Johnson vetoed the Civil Rights Act of 1866, regarding the Black Codes as consistent with the 13th Amendment (Edwards 2015). Mainstream Republicans insisted that “civil equality” (and emancipation) entailed the Civil Rights Act of 1866.

The civil/political distinction likewise structured the 1866 disputes between Centrist and Radical Republicans over the admission of Tennessee and Western states such as Colorado and Nebraska. Whereas Centrists in 1866 viewed equal “civil rights” as the definition of Black freedom, it was Radicals who in 1866 argued that “political equality” was likewise necessary.

It is not surprising, then, that Western states like Colorado and Nebraska were admitted even though they did not provide for Black suffrage. The admission of these states, however, is not evidence that loyalty trumped “racial equality.” Rather, it is evidence that in 1866, Centrists (who held the balance of power) defined “civil equality” as the dividing line between slavery and freedom.

A dichotomous concept of equality has likewise led to widespread misunderstanding of the “state action” cases of the Reconstruction era, as I have argued in my own scholarship. Attention to the civil/political/social rights typology helps reveal that these decisions provided jurisprudential tools for the federal prosecution of unpunished racial violence and the federal protection of Black voting, even as public accommodation rights were disparaged.

The conventional claim that the Civil Rights Cases (1883) put the nail in the coffin of Reconstruction cannot explain the Court’s explicit approval of the Civil Rights Act of 1866 as valid legislation pursuant to Section 5 of the 14th Amendment; the Republican Party’s rebooting of voting rights enforcement in 1880s under, in part, the 15th Amendment (which should have been impossible if conventional wisdom about state action doctrine were correct); and the unanimous decision in Ex parte Yarbrough (1884) that sent Klansmen to jail under, in part, the 15th Amendment.

Much is at stake, therefore, in dispensing with the concept of equality as a dichotomy—both an understanding of the sequences of Reconstruction and the Court’s settlement of Reconstruction.

Conclusion

A recurring pattern in “Punish Treason, Reward Loyalty” is the framing of binary, “this/not that” assertions: Republican framers were structure-centered, not rights-centered; what mattered were Sections 2, 3, and 4, not Section 1; the framers privileged loyalty, not racial equality; they empowered Congress, not courts; constitutions work by designing institutions, not by constraining government.

These binary assertions outrun the evidence. The sequences noted above and attention to equality as a historical concept suggest that these are “both/and” matters.

Congressional speeches on loyal governance, separated from Graber’s binary framings, offer an important corrective to the tendency of constitutional lawyers to focus exclusively on Section 1. While attention to the Republicans’ reform of governmental institutions is already a feature of the 14th Amendment literature, Graber’s unified attention to Sections 2, 3, and 4 and “loyal” governance broadens appreciation for the reforms that go under the umbrella of Reconstruction. 

The scholarly puzzle remains the flux of Reconstruction—the rise and decline of military and federal civilly enforced regimes of rights and remedies, as well as inactive Sections 2 and 3 and new Western states. That puzzle is obscured in Graber’s book because key sequences and equality discourses pertaining to the 39th Congress are flattened.

A key takeaway from Graber’s study is that major political movements engage in institutional design to facilitate the ascendance of affiliates to governing positions, whether we are talking about the anti-slavery movement or the conservative legal movement. However, such ascendance presupposes frameworks of meaning, which draw people to that movement in the first place and which can evolve. Political rule entails establishing “who” controls institutions and “how,” but those processes are inescapably tied to frameworks of meaning about “what for.” 

“Punish Treason, Reward Loyalty” brings necessary attention to the constitutional configuration of governing institutions. But it seems unnecessary, and a blind alley, to posit that this matters more than meaning-making (or vice versa).

Editor’s note: The author would like to thank David Bateman, Gregory Downs, and Kate Masur for helpful comments.