Author:Melvin I. Urofsky

Page 2142

The Framers of the Constitution did not anticipate a civil war or contemplate the constitutional problems in rebuilding the Union after such a conflict. From ABRAHAM LINCOLN'S first proposal for restoring the Union in 1863 to the withdrawal of the last federal troops from the South in 1877, Reconstruction was at heart a series of constitutional questions involving the power of the federal government vis-à-vis the states and the relations among the various branches of the national government.

The key issue from the very beginning centered on the nature of the Union. The South claimed that as a compact of states, the Union could be dissolved by the single expedient of the sovereign states choosing to withdraw. The North saw the Union as indissoluble. As Chief Justice SALMON P. CHASE later wrote in TEXAS V. WHITE (1869), "The Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States." The northern view had prevailed by force of arms, and the Union had been preserved. But if the states had never left the Union, as Lincoln had claimed throughout the CIVIL WAR, then why would a reconstruction be necessary to put them back in a status they had never left?

Lincoln approached this question in the same commonsense manner he had approached the war. The Constitution did not specifically authorize the federal government to deal with a civil war, but it was inconceivable that the Framers had not intended for the government to have all the adequate powers to preserve and defend itself. Throughout the war, Lincoln relied on the "adequacy of the Constitution" theory to justify actions that could not be grounded on a specific constitutional clause.

Common sense told him that if theoretically the states could not leave the Union, in initiating the war they had at least left their proper role in that Union, and some actions would have to be taken to make theory and reality whole again. The Ten-Percent Plan, whereby one-tenth of a state's 1860 voters would swear support of the Constitution and "reestablish" state government in return for presidential recognition, must be seen not as Lincoln's final word on the subject but as a wartime measure designed to draw the southern states back with the promise of leniency. Moreover, Lincoln wanted to retain his flexibility; if the Ten-Percent Plan worked, well and good, but if not, then he would try something else. The President vetoed the WADE-DAVIS BILL not because he disagreed with its provisions but because it left him too little room for maneuver. The three state governments set up under Lincoln's plan proved failures, and there is evidence that the President and Congress were moving toward agreement on a new plan at the time of his assassination.

Where Lincoln had shown flexibility and open-mindedness in approaching the problem, his successor took a rigid and uncompromising position: the States had never left the Union, and therefore the federal...

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