Whereas: Stories from the People’s House

“The Bulwark of Freedom”: African-American Members of Congress and the Constitution During Reconstruction

On December 9, 1873, the National Civil Rights Convention drew several hundred African-American activists to Washington, DC. Attendees recognized that gains had been made in the Black struggle for equality during Reconstruction, but called on Congress to pass sweeping civil rights legislation, noting that recent “declarations recognizing our entitlement to all of our rights, with essential ones withheld, render the grievances even more intolerable.” Signed by the convention’s acting president, Black activist and restaurateur George T. Downing—who also ran the House Restaurant in the U.S. House of Representatives—the statement stressed that the Constitution offered a clear justification for integrated public accommodations, juries, and schools. No constitutional barrier prevented the federal government from “going far enough to effectually protect the civil rights of a citizen wherever the stars and stripes have sway.”

During Reconstruction, African-American activists frequently used constitutional language to make the case for equal civil and political rights. References to individual rights, citizenship, and suffrage were often framed in relation to the three constitutional amendments that seemingly transformed the rights of African Americans following the end of the Civil War. First, the Thirteenth Amendment abolished slavery. In 1868, the Fourteenth Amendment defined citizenship and guaranteed equal protection of the law. Finally, in 1870, the Fifteenth Amendment guaranteed the right to vote for all citizens regardless of “race, color, or previous condition of servitude.” Nevertheless, by the 1870s activists like Downing knew Congress must act to extend to Black Americans rights promised by the Constitution in their daily lives. Within the halls of Congress, the first generation of Black Members of Congress led the effort to do just that.

On December 18, 1873, Representative Robert B. Elliott of South Carolina submitted the National Civil Rights Convention’s statement as a memorial on the floor of the U.S. House of Representatives. Elliott had served as temporary chairman of the convention, and was one of seven Black Members of the 43rd Congress (1873–1875). Nearly four years earlier, in February 1870, Hiram Revels of Mississippi had been appointed the first Black Senator. On December 12, 1870, Representative Joseph Rainey of South Carolina was sworn in as the first elected African-American Member of Congress. During the 1870s, 16 Black Members held seats in Congress—14 in the House, two in the Senate, and each one a Republican from the South.

Despite these dramatic changes, African-American communities were increasingly subjected to violence and discrimination in the South—especially as the Democratic Party regained control of southern state and local governments in this pivotal decade. In Congress, Democratic Members attempted to render the constitutional amendments ineffective by blocking new civil rights legislation while asserting the primacy of state governments within the federal system.

This was particularly evident in the House debates leading up to the passage of the Ku Klux Klan Act of 1871 and the Civil Rights Act of 1875. Black Members of Congress were outspoken proponents of these laws designed to guarantee African-American civil and political rights. Black Congressmen looked to the principles and powers enumerated in the Constitution and its amendments to fight back on the House Floor. The nation’s founding document, as Rainey put it, was the “bulwark of freedom” that not only ensured “inalienable rights” for all but provided the means to secure these rights for future generations.

The Ku Klux Klan Act of 1871

By 1871, the grand project of Reconstruction in the South was already threatened by the Ku Klux Klan and other white vigilante groups. State and local officials were unable—or unwilling—to stop extralegal violence directed at politically active African Americans and white Republicans. The Ku Klux Klan Act granted extraordinary powers to the President and enabled federal intervention to stop the violence, including suspending the writ of habeas corpus and using U.S. troops. Democratic opponents of the bill immediately raised constitutional objections, arguing the law created intrusive federal powers and crossed the firm lines set by the Constitution to ensure the rights of the states.

On April 1, 1871, Elliott directly challenged those Democrats who claimed the proposed bill was unconstitutional. He focused on the argument made by Indiana Representative—and future Speaker of the House—Michael Kerr, who had referred to Article IV, Section 4 of the Constitution in his remarks.

The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

Kerr maintained that this section of the Constitution precluded federal intervention in the internal affairs of a state unless requested by the legislature or executive of the state in question.

For Elliott, the preamble to the Constitution was the starting point for dismantling Kerr’s argument. The Constitution created a government for “securing the blessings of liberty to ourselves and our posterity.” He criticized Kerr for not recognizing the significance of the opening sentence of the section he quoted: “The United States shall guarantee to every State in this Union a Republican Form of Government.” The federal government, Elliott said, must not be a “passive observer” as citizens were robbed of “the blessings of liberty.”

Elliott stressed that the Constitution “vests in the federal government the right to act” against any threats to democracy. Those engaged in the violent attacks on African Americans in the South, he said, were committed “to defeat the ballot with the bullet and other coercive means,” and were engaged in “acts of organized lawlessness.” If the United States cannot protect the “loyal men of the South”—citizens that stood by the Union in the Civil War— from this “domestic violence,” Elliott warned, “your free Constitution is a mockery and a snare.”

Rainey spoke later that evening, pleading with his colleagues to consider the purpose of the Constitution, which he described as the “bulwark of freedom” protecting “inalienable rights” for all against “foreign invasion and domestic violence.” Rainey considered this a vital function of any government and admonished his colleagues for using the text of the Constitution to evade responsibility. “Tell me nothing of a constitution,” he said, “which fails to shelter beneath its rightful power the people of a country!”

For the first time, African-American Representatives were able to advocate for the interests of the Black community from seats on the House Floor. Less than a month later, the Republican majority passed the bill, and the Klan Act was used in nine counties in South Carolina in October 1871 to break up this organization and momentarily quell the violence in the region.

The Civil Rights Act of 1875

Senator Charles Sumner of Massachusetts, a leading Radical Republican, proposed a new civil rights bill to outlaw racial discrimination in public transportation, education, juries, and public accommodations in 1870. On December 19, 1873, Republican Benjamin Butler of Massachusetts initiated 15 months of debate when he introduced H.R. 796, his version of the civil rights bill. Butler anticipated—and dismissed—the Democrats’ reliance on states’ rights doctrine to justify discriminatory practices. “State rights are one thing and State wrongs are another,” the flamboyant Butler chided his southern colleagues, “and State wrongs must yield to the Constitution of the United States.”

James Burnie Beck of Kentucky was one of the first Democrats to deny the need for such legislation, stating that African Americans already had access to rights under the Constitution. Rainey responded with a statement in support of the civil rights bill as a measure of enforcement. “We are determined to fight this question; we believe the Constitution gives us this right,” Rainey said. Individuals treated differently under the law deserved action by the federal government. “All of the 15 amendments to the Constitution run down in one single line of protecting the rights of the citizens of this country,” Rainey said. “And now we say to you that if you will not obey the Constitution, then the power is given by that Constitution for the enactment of such a law . . . to enforce the provisions thereof.” Rainey was adamant that the Constitution both defined individual freedoms and enabled Congress to proactively draft legislation to guarantee those rights.

On January 5, 1874, Democrat John Harris of Virginia called Butler’s bill unconstitutional, with the potential to cause the “downfall of our Government.” It did not “harmonize with the Constitution,” but instead undermined the system of limited government that was the foundation of the nation. Echoing Rainey, Harris referred to the Constitution as “the bulwark of freedom.” But in doing so, Harris focused on the way it conserved the power of state and local governments, which he said were the expressions of “the sovereignty of the people.”

Representative Alexander Stephens of Georgia followed Harris and gave a lengthy denunciation of the civil rights bill. The former Confederate vice president had returned to the House in 1873 after a 14-year absence. His hour-long speech framed the debate as a battle between “constitutionalism and centralism.” For Stephens, “constitutionalism” was rooted in “the absolute unrestricted right of State self-government in all purely internal municipal affairs.” This was “the germinal and seminal principle of American constitutional liberty.” The Reconstruction Amendments did not upend this doctrine, Stephens insisted. Instead, he cited an 1873 Supreme Court decision that limited federal jurisdiction over state matters such as civil rights as evidence that the Fourteenth Amendment would not radically alter “the nature and character of the Government.”

Representative Alonzo Ransier, who only a month earlier took his seat in the House after serving as the first Black lieutenant governor of South Carolina, insisted that “in very many, if not in all of the States of the Union, there is no practical freedom” for African Americans, “nor would there be any worth talking about if left to the States to regulate.” When citizens were denied “equal opportunities” to participate in the “pursuit of happiness,” the federal government must embrace its “solemn duty” and guarantee equal protection under the law as required by the Fourteenth Amendment.

On January 6, Robert Elliott directly addressed Stephens in a speech celebrated in the national press. Elliott rejected the notion that Congress could not pass legislation pertaining to individual rights in the states. Stephens had differentiated between the rights protected by the Constitution and the laws of an individual state, but Elliott noted that this distinction was irrelevant, as “all discrimination, all denial of equality before the law, all denial of the equal protection of the laws, whether State or national laws, is forbidden” by the Fourteenth Amendment. And the Reconstruction Amendments, he reminded his audience, “invest Congress with the power to protect the citizen in his civil and political rights.”

Debate on the civil rights bill continued throughout 1874. In June, James T. Rapier of Alabama rebuked Stephens and his colleagues for their restrictive view of the Constitution. Rapier compared Stephens to Washington Irving’s fictional character, Rip Van Winkle, who fell asleep for 20 years only to wake with antiquated ideas calcified in a distant past. He was unprepared to adjust to “the new order of things.” As a well-known defender of slavery and a rebel leader, Stephens was “poorly qualified to teach this nation the meaning of our amended Constitution.”

Rapier argued that the existence of discriminatory state laws and practices undermined the Constitution itself. How could he be a Member of the House of Representatives and not enjoy equal protection of the law beyond the House Chamber? For Rapier, the law could not be ambiguous: “either I am a man or am I not a man. If one, I am entitled to all the rights, privileges, and immunities common to any other class in this country; if not a man, I have no right to vote, no right to a seat here upon this floor; or if I am tolerated here, it is in violation of the Constitution of our country.”

Rainey rejoined the fray on February 3, 1875, during the final push to pass the civil rights bill before the end of the 43rd Congress on March 3. Democrats had regained control of the House in the 1874 elections, and Republicans worked to pass the bill before the transfer of power at the start of the 44th Congress (1875–1877) in early March. After a lengthy speech in which he outlined the ways discriminatory practices undermine equality—particularly in education, public accommodations and transportation, and the courts—Rainey concluded with an appeal to consider the text of the Constitution.

Rainey admonished “those who read the Constitution with partial and selfish motives,” using a narrow reading of the Reconstruction Amendments to limit the constitutional rights of African Americans. “We claim equal rights and interests with other citizens who are embraced within the limits of all its provisions.” He identified Article IV, Section 2 of the Constitution, as the justification for this demand: “The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” The civil rights bill was necessary to ensure the enjoyment of these rights. “The only ground upon which these privileges and immunities are withheld,” Rainey said, “is because of complexional differences”—a decidedly unconstitutional violation of the rights of citizens.

On March 1, the Civil Rights Act of 1875 finally became law after five years of debate. Ultimately, provisions related to desegregating public education, churches, and cemeteries were removed, but the law did prohibit discrimination in juries, transportation, and public accommodations. African-American Members of Congress were hopeful that, coupled with the Reconstruction Amendments, it would guarantee equal protection under the law and outlaw racial discrimination. By the 1890s, however, a system of Jim Crow segregation had descended upon the South, enforced by state and local laws as well as extralegal violence. Supreme Court decisions further weakened the Civil Rights Act and curtailed the Reconstruction Amendments.

In 1873, the National Civil Rights Convention demanded congressional action on behalf of “nearly five millions [sic] of American citizens who are shamefully outraged.” For a fleeting moment during Reconstruction, Black Members were present on the House Floor to listen and act in defense of their constituents’ rights. Inspired by the Constitution, they sought to realize the promise of American democracy and experience what Alonzo Ransier called “practical freedom.”

Sources: Congressional Globe, House, 42nd Cong., 1st sess. (1 April 1871): 389–395; Congressional Globe, Appendix, 42nd Cong., 1st sess. (1 April 1871): 206–208; Congressional Record, House, 43rd Cong., 1st sess. (18 December 1873): 310; Congressional Record, House, 43rd Cong., 1st sess. (19 December 1873): 340–344; Congressional Record, House, 43rd Cong., 1st sess. (5 January 1874): 378–383; Congressional Record, House, 43rd Cong., 1st sess. (6 January 1874): 407–410; Congressional Record, House, 43rd Cong., 1st sess. (9 June 1874): 4782–4786; Congressional Record, House, 43rd Cong., 2nd sess. (3 February 1875): 956–960; An Act to enforce the Provisions of the Fourteenth Amendment to the Constitution of the United States, and for other Purposes, 17 Stat. 13 (1871); H.R. 796, 43rd Cong. (1873); Civil Rights Act of 1875, 18 Stat. 335 (1875); Memorial of National Convention of Colored Persons, 43rd Cong. 1st sess., H. Misc. Doc. 44 (18 December 1873); New York Times, 10 December 1873; Eric Foner, The Second Founding: How the Civil War and Reconstruction Remade the Constitution (New York: W.W. Norton & Co.: 2019).

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