What can the Civil War Congress teach the Congress of 2020?
Contrary to popular shorthand, Abraham Lincoln did not end U.S. slavery with the Emancipation Proclamation. The 13th Amendment to the Constitution did that. While Lincoln’s support for abolition was crucial to building momentum for it, the 13th Amendment was ratified entirely by Congress and then the states. Constitutional amendments are among the few examples of federal law that bypass the presidency entirely.
That’s what makes the new book Congress at War by historian Ferguson Bordewich so fascinating. In his telling, Lincoln becomes only a peripheral figure in the monumental events of 1861 to 1865, with the legislative branch assuming center stage instead. The assassination at Ford’s Theater merits a single paragraph on page 353. Even then, it’s told from the perspective of abolitionist Congressman Thaddeus Stevens upon hearing the news.
So, what can the Civil War Congress teach the Congress of 2020? GovTrack Insider interviewed Bordewich to find out.
During this pandemic, Donald Trump has called himself “a wartime president.” Compared to Lincoln who was unquestionably a wartime president, is Trump’s characterization fair?
What we’re dealing with now, extraordinary as it is, is lasting a few months. Maybe there will unfortunately be a second wave, but it would still last maybe a year. The Civil War lasted four years. I think we know what the outcome of this pandemic is going to be: we’ll produce a vaccine at some point.
That was not true of the Civil War. It wasn’t clear by any means, until the third year of the war, that the North was going to prevail. Lincoln, as late as summer of 1864, though he would not be reelected and the war would be lost. The uncertainty of the country’s future, with this prodigious loss of life, touched virtually every single family in America. The scale of these two things is significantly different.
What’s similar is you have a moment in which the entire nation is focused on a crisis. A moment when the government was called upon for extraordinary and creative leadership. Fortunately, this country now has almost immeasurable resources to deal with this. The economic situation we’re in now can’t be diminished, of course. It’s catastrophic in the short run, to the livelihood of a lot of people. But during the Civil War, there were vast economic problems that had to be solved over and over and over again. How to finance the war? When the war started, the country didn’t have any income tax. Solving this came from Congress, using the best kind of creative thinking, and tough courageous politics.
Often during times of great crisis, legislation moves at lightning speed. For example, the $2 trillion CARES Act stimulus law a few weeks ago, or the PATRIOT Act right after 9/11. Did Congress during the Civil War move at a faster, slower, or usual speed than usual?
Congress can act fast when there’s a consensus. These are rare moments, when consensus is clear and ideology falls away, for the most part. The rescue package was essentially non-ideological, or at least members of Congress who were ideological put those concerns aside. Congress became pragmatic. The same thing happened after 9/11. There were debates about the PATRIOT Act, but nonetheless, a consensus was reached very fast.
During the Civil War, Congress was able to accomplish so much, so fast. Those conservative reactionary southern states had been a roadblock against forward-looking legislation: the transcontinental railroad, land grant colleges, the first income tax. There was almost complete consensus in the North. Once the southern states were out, those bills were able to pass with relative ease.
The Republican Party had huge majorities in both the Senate and House. The Republican agenda, as it emerged, was for the most part a strong consensus on almost every measure. That doesn’t mean there wasn’t debate — there was. Even with the Republican party, there were conservatives and there were Radicals. And there was a very vocal, though much outnumbered, opposition to war from northern Democrats [Copperheads].
The 13th, 14th, and 15th Amendments abolished slavery, granted equal rights to blacks under the law, and allowed black men to vote. Those were all ratified within five years, from 1865–1870. Currently, America hasn’t ratified a Constitutional amendment for 28 years. What can we learn about how to?
It really comes down to consensus. Amendments get passed when there’s a real consensus. It’s not a procedural problem. In the years from 1865 to 1870, the Republicans had overwhelming majorities. In fact, so overwhelming in 1865 and 1868 that they could override President Johnson’s opposition. Congress overrode President Johnson’s vetoes 15 times. [That’s still the record. Harry Truman and Gerald Ford tie for second, with vetoes overridden 12 times.]
Think of the Prohibition amendment in 1919. There was a consensus in the country that Prohibition was a good thing. The Prohibition movement had existed for 80 or 90 years, but it took 80 or 90 years for the consensus to build. Of course, that consensus faded very fast, because the country went through a decade of lawlessness as a result. Same thing with the women’s suffrage amendment in 1920. Sen. Ben Wade was on board back in the 1860s. It took 50 years to create that consensus.
The fact that the civil rights amendments were passed so quickly was due to atypical circumstances. The South essentially had no votes on those amendments. They were out. When there were southern congressional seats that were filled after 1865, they were filled by Republicans — Radicals, mostly. Those were Radical votes, they were not ex-Confederate votes.
There weren’t ex-Confederates in those seats until after 1876. The national mood changed after 1876. The 14th and 15th Amendment became dead letters, ignored well into the 20th century.
Lincoln was a former congressman from Illinois. Did that experience help him, hurt him, or make no difference in his relations with Congress?
Lincoln had a single undistinguished term in the House. He didn’t accomplish anything. He was not well known as a legislator. He was not the great Abraham Lincoln that we know now. He was just a Whig spear carrier.
As a Whig, he regarded the legislature as the leading branch of government, not the presidency. That’s a modern idea, that the presidency is the central engine of power in Washington. That’s essentially a 20th century concept. In the 19th century, and from the beginning of the republic, that power was understood to repose in Congress. Lincoln governed with a great deal of deference to Congress. They collaborated and cooperated. Lincoln typically waited for policies to come out of Congress, rather than taking policies to Congress.
Today, we usually look at the White House to craft policy, and Congress to act on it or not. Lincoln was a very assertive president for the 19th century. The only other comparably assertive president in the 19th century was Andrew Jackson. Still, Lincoln was more deferential to Congress than almost any 20th century president.
Congress wasn’t yet in session when the war began in April 1861. So Lincoln was the government for three months. Congress itself didn’t vote on anything until July. Lincoln acted decisively at the beginning after Fort Sumter, such as calling up the militia, which he was empowered to do. He suspended habeus corpus [allowing people to be jailed without trial] in a couple of places, particularly Maryland, where there was a great deal of subversion which endangered the security of Washington, D.C. itself. Lincoln’s executive decision was later retroactively approved by Congress, but many members of Congress weren’t all that happy about it.
Do you think secession could ever happen again?
The South, increasingly in antebellum times, demanded leverage over the federal government. It was absolutely clear to them that they were soon going to be overwhelmed. As western territories became new states, it was obvious to southerners that the majority would be free states. They had already lost control of the Senate. They had dominated the presidents of the 1850s, who were northern men with southern principles: Fillmore, Pierce, Buchanan. Lincoln was the great break.
I don’t think secession could happen today. There are many small secession movements now and again, including one in Alaska. From time to time, people in Texas express that. There’s a portion of northern California where there’s a movement that’s been stumbling along for years, to create a new more conservative state. At bottom, there are no significant political players anywhere advocating it.
Where you find secessionist sentiment today tends to be among disgruntled angry people who feel marginalized, not people who are in power. But in the South then, the secessionist movement was strongly concentrated among people who were in power in the states.
What you do see today that is a parallel is not states outright seceding, but the extraordinary resurgence of states’ rights in recent years. There’s a steadily growing hostility to the federal government. Except during time of desperate need, like right now. Hostility to the federal government has abruptly evaporated on the right wing.
Congress fiercely debated whether the South was still entitled to representation in Congress, even after those states claimed to secede. After all, the North’s position was that those states hadn’t really seceded, that it wasn’t valid. How did that debate get resolved?
With the southern states seceding, all their former congressional seats were vacant. There were no bodies in them. All the confederate states would normally have two senators, but they were all gone. The only one who remained was Andrew Johnson of Tennessee, which is how he became famous. [Johnson eventually became president.]
The problem is, without a quorum [a requisite number of Congress members physically present in the room to vote], you can’t get any business done, you can’t do anything. And there were a multitude of bills which had to get passed, including finance bills. So the question was: if those vacant southern seats were still considered part of the Senate, it would require many more other senators to be in the room to form a quorum, which would make it much harder to pass laws. It was a very tricky issue.
So there was a vigorous debate about this, especially in 1861 when nobody really knew what to do about it. The Democrats, those who opposed a vigorous war effort, who came talking about conciliation towards the South, tended to push for the larger quorum. The Republicans in general, both conservatives and Radicals, generally argued for the smaller quorum.
Finally what the Senate did was act as though there was a quorum. The House operates differently. The House can change its rules in any session, while the Senate’s rules are more rigid. The House had no problem with its quorum rules, it was the Senate. It was pragmatic, it worked. Had they not been pragmatic, Congress would have frozen up. You would have seen gridlock, of a kind that we are all too familiar with today.
[The issue of congressional quorums, usually obscure, made front page headlines against last month. Rep. Thomas Massie of Kentucky tried to force a quorum for the House’s $2 trillion stimulus vote, instead of the planned “voice vote” for the relatively noncontroversial emergency legislation. Massie’s attempt was quickly rejected, in the name of social distancing, since requiring hundreds of House members to vote together in close physical proximity could be dangerous with the covid-19 coronavirus. Massie’s move was almost universally condemned, and President Trump even called for Massie to be removed from the Republican party.]
The Civil War Congresses helped accomplished two things above all else: one a radical change (ending slavery), the other essentially returning things to normal (reuniting the country as it was before). Our current crisis is mostly just trying to return things to normal, as it was before mid-March. But could radical changes also result, like during the 1860s?
Much of the debate in Congress, and among ordinary Americans, was whether people wanted to go back to the way things were before, back to normal. McClellan in 1864 represented going back to normal. But there was no going back. The country came out of the war a different place than when it went in.
I think you can pursue that line of thinking. Bear in mind, the Civil War was four years. And it overthrew the entire economic system in a big part of the country. It erased the value of slaves as property. Slaves were collectively the single most valuable category of property in antebellum America. The economic upheaval was tremendous. It was a revolution, it really deserves that word. And a social revolution as well, which the amendments ensured. There was no going back.
Today? I’m not a prophet. Will Americans be more responsive to a Democratic party program which calls for some kind of structural change in the U.S., like universal health care? I think not, but that’s just a guess on my part. People want to go back to normal, but what’s normal going to be? Maybe people will do more waving to each other than shaking hands.
I think it’s possible there will be a much greater burden from now on for federal and state governments to protect people who have lost their jobs. The economic ramifications could be quite long-lasting. It may mean a greater willingness and desire on the part of ordinary Americans to rely on the federal government. Would that lead us back to a more trusting relationship with the government? The deep seated hostility, to Congress in particular that polls have demonstrated in particular, is poisonous. It’s the greatest threat to democracy that we have.
That was one of the reasons I wrote this book, and also my last book The First Congress. To show how the machinery of government works and why it matters, in a literary sense. To show that there’s a great deal of drama to be seen and found in the workings of government. Congress is a collective government, not in a socialist sense, but that it’s not just one man in the White House, which too many Americans have become accustomed to thinking of as “the government.” Our government is much more complex than that, diffuse than that, and diffuse for a reason. Perhaps this crisis will lead us to see things more that way.
This article was written by GovTrack Insider staff writer Jesse Rifkin.
Read our 2017 interview with Fergus Bordewich: “What the first Congress of 1789 could teach the Congress of 2017.”
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