In Pursuit of “Practical Freedom”

On January 5, 1874, Representative Alonzo Ransier spoke on the House Floor for the first time. Ransier had lived the changes wrought by the war and Reconstruction. He had been a member of the delegation that lobbied President Johnson and Congress in 1866, participated in his state’s constitutional convention in 1868, was elected to the state legislature, and also was elected as the first Black lieutenant governor of South Carolina. Yet he recognized the difficulties African Americans continued to face in his home state. He hoped to see an improved civil rights bill signed into law to fortify, expand, and guarantee the rights ostensibly protected by the federal government during Reconstruction.

During his remarks in 1874, Ransier lamented the burgeoning strength of White supremacists in southern state and local governments. He warned of the potency with which Democrats wielded the doctrine of states’ rights against African Americans and Republicans in the South, creating a society insulated from the powers of the federal government. For Ransier and his Black colleagues, it was incumbent on Congress to create a coordinated response to injustice—even beyond the South. Ransier observed 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.” It was the “solemn duty” of Congress, he added, to pass necessary legislation “for a full and complete remedy as is demanded by the situation.”⁵⁹

Ransier’s speech distilled a larger agenda shared by each Black lawmaker, evidenced in their many speeches during debate. During Reconstruction, Black Members used their voices on the floor to shape policy and leave a historical record of their efforts. When they could, African-American Representatives and Senators provided firsthand accounts of civil rights abuses and advocated for corrective legislation. They embraced opportunities to advocate for strong federal legislation that directly affected the lives of freed people and all African Americans, especially in support of bills designed to guarantee the civil and political rights of Black Americans.

The comments of Black Members on these measures provide a window into an attempt to forge a transformative agenda in the national legislature and reach beyond their congressional districts. Richard H. Cain of South Carolina regularly referred to the “five million people for whom I speak,” a reference to the total African-American population in the United States in the 1870s. Though Robert Elliott represented citizens within the boundaries of the Third District of South Carolina, he described his constituency as “restricted by no territorial limit.” And Joseph Rainey told his colleagues on the House Floor that he represented “the outraged and oppressed negro population of this country, those I may strictly call my constituency.”⁶⁰

On the House Floor, Black Members described the constitutional rights of U.S. citizens in broad terms—with some glaring omissions. Few voiced support for voting rights for women, for example, and throughout this period, Congress largely disregarded measures designed to secure women’s rights. The Fourteenth Amendment asserted that only “male citizens” could vote, explicitly adding gender to the Constitution for the first time. In Congress, Black Members were rarely asked to take a position on this issue; many rooted their understanding of individual rights in contemporary notions of “manhood,” and largely avoided the rights of women in debate. In January 1871, Jefferson Long voted for and Rainey voted against a bill to grant women suffrage in the District of Columbia. Neither Representative commented on the vote, but other Black Members spoke about extending rights to women. In 1874, Cain appealed for educational opportunities for “black men and black women” in the South. And that year, Ransier questioned whether the U.S. government could claim “to rest upon the ‘consent of the governed,’” if all citizens—men and women alike—were not granted suffrage. “And may the day be not far distant,” Ransier declared, “when American citizenship in civil and political rights and public privileges shall cover not only those of our sex, but those of the opposite one also.”⁶¹

Black Members often promoted an expansive vision of human rights for their day. This was a common refrain of Senator Charles Sumner, for whom a central tenet of Reconstruction was protecting the “human rights” of freed people. The Massachusetts Senator deployed this term almost interchangeably with “equal rights” and “the rights of man.” Black Members embraced this approach and often looked abroad to find inspiration for their pursuit of human rights.⁶²

James Rapier, who had lived in Canada and traveled to Europe, told his colleagues that distinctions of color faded away as soon as he stepped onto the deck of a ship scheduled to leave an American port. Amid their urgent calls to action, Black Members also embraced allusions to revolutionary movements around the globe, historic slave uprisings, and the bravery of African-American soldiers in the Civil War. They decried the slow pace of change and hailed those with the revolutionary spirit to struggle for their rights. Rainey praised the Haitian revolutionary Toussaint Louverture and the resistance of the Zulus against British forces in 1879 in what is today South Africa. Josiah Walls printed a lengthy speech backing the Cuban independence movement in January 1874, calling on the federal government to support an effort he likened to the American struggle for self-determination in 1776. Blanche Bruce opposed a measure excluding Chinese immigrants in 1879, informing his colleagues that he had “confidence in the strength and assimilative power of our institutions,” and he rejected the notion that this particular group of immigrants would be detrimental to American society. He reminded his colleagues that Black Americans “but a few years ago were considered essentially disqualified from enjoying the privileges and immunities of American citizenship.”⁶³

In the Constitution, Black Members found the instrument that could make these dreams of equality a reality. By amending—and upholding—the Constitution, Black Members identified a route for change. They enthusiastically embraced the founding document, which they read as a clear statement of the power of the federal government to act. Federal legislation was the means to ensure equality when states ignored the needs of their citizens, providing an active guarantor of the many individual freedoms promised by the American system. The power to amend the Constitution when necessary, Walls said in 1875, was “the genius of our American ideas of civilization.”⁶⁴

“Protect the Loyal Men of the South”

On March 4, 1871, the 42nd Congress convened with a clear agenda and a sense of urgency conveyed by an official proclamation from President Ulysses S. Grant. Throughout the southern states, organized White vigilantes had been brutally attacking anyone sympathetic to the Republican Party, including voters, officeholders, and candidates on the campaign trail. With state and local governments in the region indifferent to the violence or incapable of responding, Grant urged Congress to pass legislation to protect the rights of individuals in the South.⁶⁵

The previous Congress had passed two laws in response to this burgeoning crisis. The first was designed to prohibit state officials from discriminating against voters based on race and the second to provide additional federal oversight of elections. On March 28, 1871, Samuel Shellabarger of Ohio introduced a third measure in this series of laws known as the Enforcement Acts. Later referred to as the Ku Klux Klan Act of 1871, the bill enabled the federal government to use the full extent of its power to quell the prevailing lawlessness in the South and protect the rights of individuals. To ensure equal protection, federal law enforcement was empowered to intervene in southern states, and federal district attorneys could prosecute the Klan under federal law. Congress also provided the President with the power to suspend the writ of habeas corpus and to send federal troops to intervene in unruly counties in the South.⁶⁶

Black lawmakers welcomed this expansive vision of federal power. On April 1, Robert Elliott declared the bill necessary because of “the present posture of affairs in the southern states.” Elliott challenged those who claimed the bill was unconstitutional, defending its provisions as legally compatible with the Constitution and pointing to examples of Klan violence in his district.⁶⁷

Elliott emphasized that the Constitution created a government for “securing the blessings of liberty to ourselves and our posterity.” He noted that Article IV, Section 4, begins: “The United States shall guarantee to every State in this Union a Republican Form of Government.” This mandate, Elliott said, compelled the federal government to act; it could not remain a “passive observer” as citizens were robbed of “the blessings of liberty.” He denounced those perpetrating the violent attacks on African Americans in the South for seeking “to defeat the ballot with the bullet and other coercive means.”⁶⁸

Democratic opponents of the bill warned of the “centralization” of federal power and foretold of irreparable damage to states’ rights under the Constitution. Rainey joined Elliott in rejecting this argument. Calling on the federal government to act, Rainey told the House of the indifference of local law enforcement and the lack of justice in state and local courts. Rainey reminded his colleagues that the Constitution provided “protection to the humblest citizen, without regard to rank, creed, or color.” It was designed to be a “bulwark of freedom” protecting “inalienable rights” for all against “foreign invasion and domestic violence.” This was an essential function of any system of government, Rainey said. “Tell me nothing of a constitution which fails to shelter beneath its rightful power the people of a country!”⁶⁹

For the first time, African-American Representatives in the House were able to speak as advocates for significant legislation designed to protect the rights of African-American citizens. All five Black Members of the House supported the bill as it moved towards passage in the chamber. President Grant signed it into law on April 20, 1871.⁷⁰

In October 1871, Grant declared a “condition of lawlessness” in nine South Carolina counties, suspended the writ of habeas corpus, and dispatched federal troops to the region. Many Klansmen fled the state as hundreds were arrested and several dozen brought to trial and sentenced to prison by majority-Black juries. This show of governmental force smashed the Klan. With the terror organization in disarray, the South Carolina counties where it operated experienced a drastic decline in violence in the early 1870s. Four of the nine counties were represented by Rainey and Elliott, while the other five were in Republican Representative Alexander Stuart Wallace’s Fourth District. For Elliott and his Black colleagues, this decisive action was necessary to uphold the principles upon which the U.S. government was founded. “If you cannot now protect the loyal men of the South,” Elliott warned in April 1871, “then have the loyal people of this great Republic done and suffered much in vain, and your free Constitution is a mockery and a snare.”⁷¹

Amnesty Act of 1872

Loyalty was at the heart of congressional debates in the transitional decade of the 1870s. Immediately following the Civil War, Radical Republicans wanted to prevent former Confederates from ever serving in public office. But President Johnson had issued pardons for some former Confederates, and congressional Democrats urged new legislation to extend amnesty to nearly everyone who took up arms against the United States.

In the 41st and 42nd Congresses, several bills were introduced to address the “political disabilities” imposed on participants in the rebellion. The bill debated in early 1872 offered near blanket amnesty; only former federal officeholders and military personnel who resigned their positions to join the Confederacy were ineligible for what amounted to a large public pardon.⁷²

Black Members were adamant that passage of any amnesty bill should be contingent on support for a new civil rights bill. In 1870, Senator Sumner introduced a broad civil rights bill to empower the federal government to guarantee equal access to public accommodations, transportation, schools, churches, and cemeteries. Sumner’s bill was met with resistance in the 41st and 42nd Congresses and referred to the Judiciary Committee each time. In the House, Republicans introduced similar legislation to no avail. Both the Senate and House efforts were framed as amending, clarifying, and strengthening the 1866 civil rights bill.⁷³

Black Representatives recognized the crucial role new civil rights legislation could play in solidifying the gains of Reconstruction and made the bill central to the debate over amnesty. Removing the “political disabilities” of former Confederates while allowing outright discrimination against African Americans was a galling act of treachery in the eyes of Black Members. Rainey was among those who supported amnesty provided that the House reciprocate by considering a new civil rights bill. Robert De Large considered amnesty the path to cooperation in a new postwar South. He asked his colleagues if they believed those still facing restrictions would have any incentive to use “their influence and best endeavors for the preservation of the public peace, when they have nothing to look for politically in the future?”⁷⁴

Not all Black Members agreed with this transactional act of reconciliation, however. During his brief term in office near the end of the 41st Congress, Representative Jefferson Long objected to a bill modifying the “test oath” for those who were still confined by “political disabilities,” which would provide those who participated in the rebellion a way to circumvent the strict terms of the then mandated loyalty oath for those serving in elected office. He wanted Congress to solidify Black rights in the South before creating new opportunities for former Confederates. On February 1, 1871, Long delivered the first speech by a Black Representative on the House Floor. He described the prevailing lawlessness in his home state, where White vigilantes assaulted and murdered “loyal men” with impunity. Long demanded that the oath be maintained to prevent those he called “disloyal men” from returning to power in Georgia. Otherwise, he warned, “I venture to prophesy you will again have trouble from the very same men who gave you trouble before.”⁷⁵

The amnesty bill that passed by a voice vote in May 1872 attracted Republican support in Congress after party leadership decided it would help President Grant win re-election that fall. The incumbent Grant faced a potential challenge from Horace Greeley and the Liberal Republican movement, which was attempting to splinter the ranks of the Republican Party by objecting to most of the policies associated with Reconstruction and calling for universal amnesty.⁷⁶

Black Members recognized the party imperatives at play yet firmly stated their reservations about codifying this drastic change in law without an accompanying civil rights bill. They were determined to use government action to make justice a reality, prioritizing the rights of those loyal to the U.S. government, not those who engaged in violent rebellion.

Education as a Civil Right

For African Americans—and especially freed people living in southern states—federal legislation to fund and establish a national education system was a leading priority. Before the Civil War, southern states barred Black students from attending public schools or from receiving any form of instruction. Though the Freedmen’s Bureau established thousands of schools in the early years of Reconstruction, many Black students still lacked access to formal education. Those institutions that did exist were largely underfunded, isolated, and struggled to serve the needs of Black communities across the South.⁷⁷

Senator Hiram Revels was the first to speak on this matter in February 1871, when he opposed an amendment to a bill on public education in the District of Columbia that would have segregated schools based on race. For Revels, equal access to education was a fundamental right for all citizens. If Congress adopted the amendment, he said, the law “will increase that prejudice which is now fearfully great against” Black Americans—and potentially lead to further restrictions, as “the next step may be to ask Congress to prevent them from riding in the street cars, or something like that.”⁷⁸

Black Members were adamant that the federal government should fund public education and take steps to ensure equal access to schools regardless of race. They backed initiatives that used federal expenditures to expand public education throughout the nation, such as a bill to fund schools through the sale of federally owned land in the South and West. But even congressional allies considered such a program controversial. Opponents of the idea feared federal funding for schools would impede states’ prerogatives, and they blocked the efforts by Black Members to enact such legislation. On the House Floor in 1872, Josiah Walls recounted a brief history of the ways states in the antebellum South zealously restricted the rights of enslaved African Americans to access education. He told his colleagues that the Democratic Party in the South would never agree to build a truly universal education system, as they “know that no educated people can be enslaved. They know that no educated people can be robbed of their labor.” For Walls, the federal government was “the guardian of the liberties of all its subjects” and had the responsibility to provide funding for African-American education in the South if the states refused to act.⁷⁹

For many in the House and Senate, this debate over the role of government was central to the fate of Reconstruction. Black Members representing districts from across the South knew that their legislative interests were better served when the federal government was willing to act to protect the rights of individuals. Advocates for states’ rights, however, rejected any encroachment upon the powers of the states. But for Republicans such as Benjamin Franklin Butler of Massachusetts, the Constitution provided the means by which Congress could—and should—intervene to guarantee the rights of individuals and ensure equal protection. A flamboyant former Democrat who had supported the doctrine of states’ rights before the Civil War, Butler changed his party allegiance and his attitude toward African Americans while serving as a brigadier general in the U.S. Army, where he had witnessed the sacrifice of Black soldiers on the battlefield. “State rights are one thing and State wrongs are another,” Butler advised his southern colleagues in 1873, “and State wrongs must yield to the Constitution of the United States.” Black Members embraced this understanding of the role of the federal government and used their place on the House Floor to make these ideas central to the prolonged debate over civil rights legislation. For the next two years, the prospect of passing a new civil rights bill consumed Congress and proved pivotal in the history of Reconstruction.⁸⁰

Civil Rights Act of 1875

Like clockwork, on December 1, 1873, the Opening Day of the 43rd Congress, Senator Charles Sumner dutifully submitted his civil rights bill. Later that month in the House, Representative Butler initiated 15 months of debate when he introduced H.R. 796, his version of the civil rights bill, which echoed much of Sumner’s proposal.⁸¹

On December 19, Joseph Rainey was the first Black Member to speak on the bill in the new Congress. He stressed that Congress had the power to pass what was referred to at the time as “class legislation,” which, in practice, had the effect of providing rights or restrictions differently to diverse groups. Rainey urged the House to assume this responsibility, revise the law, and contribute to making American society more equitable. Black Members repeatedly emphasized that the civil rights bill would not create new restrictions. But in the absence of state and local protections in the South, Congress alone could intervene to rectify this imbalance in the law and guarantee the rights of citizens.⁸²

When Butler’s bill came to the House Floor in early January, Democrats stood up one by one to denounce the civil rights bill by claiming that it enforced rights beyond the scope of the Constitution; that it usurped the power of the states to regulate public schools; and that it forced southerners to accept what they believed to be unattainable—a multiracial society. They rejected the notion that the bill would merely protect the rights of African Americans. Instead, they insisted the measure would directly inhibit the individual rights of White citizens and undermine longstanding social and economic relationships. Democrat John Brutzman Storm of Pennsylvania declared “the colored people are now in substantial enjoyment of their full rights and privileges granted by the recent amendments to the Constitution,” adding, “this bill is thrust upon us now for no other purpose than exciting bad feelings.”⁸³

Representative Alexander Hamilton Stephens of Georgia, the former vice president of the Confederacy, who had only recently returned to the House after a 14-year absence, spoke on January 5. One of the nation’s most notorious defenders of slavery, Stephens framed the debate as a battle between “constitutionalism and centralism” in a lengthy address covered by major national newspapers. For Stephens, the civil rights bill unnecessarily extended the federal government into the affairs and associations of private individuals and businesses. He called for a return to “constitutionalism,” which he claimed was rooted in “the absolute unrestricted right of State self-government in all purely internal municipal affairs.”⁸⁴

Black Members, meanwhile, repeatedly invoked the Constitution and the guarantee of equal protection of the law to make the case for the civil rights bill. Alonzo Ransier dismissed those who constantly raised the “bugbear of ‘social equality’” to stoke fear and suspicion that personal relationships would no longer remain the preference of individuals. Black Americans, he said, sought to secure “the same privileges and protection meted out to other classes of people in our land.” Ransier was joined by Richard Cain, James Rapier, and Rainey who all ardently spoke out in favor of the bill. They appealed to general notions of the rights of American citizens but also emphasized the responsibility of Congress to intervene on behalf of African Americans. Even as southern Democrats denied that railroads, hotels, theaters, and restaurants discriminated against Black customers, African-American Representatives provided vivid anecdotes of personal experiences with racism and segregation in public accommodations as evidence of the need for a civil rights bill.⁸⁵

But it was Robert Elliott’s response to Stephens on January 6 that made national headlines. Elliott dismissed Stephens’s argument, adding that he refused to take any such legal lessons from someone who had so recently sought “the break up of the Union of these States.” While Stephens asserted that there was a distinction between the laws of the states and the rights inscribed in the Constitution, Elliott stated that “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 opponent, “invest Congress with the power to protect the citizen in his civil and political rights.” This bill, Elliott said, would do just that by forming “the cap-stone of that temple of liberty,” surpassing “the highest hopes of those who, in the name of equal, impartial, and universal liberty, laid the foundation stones.”⁸⁶

A few months later, as Sumner lay dying, the old Senator allegedly urged Representative George Hoar to ensure the passage of the civil rights bill. His bill passed the Senate in May and was referred to the House Judiciary Committee in June.⁸⁷

James Rapier made an urgent appeal for the House to pass the bill. He 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? For Rapier, the law must be passed to resolve his own seemingly contradictory status: “either I am a man or I am 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.”⁸⁸

The 1874 midterm elections were a turning point for the civil rights bill in the House. Republicans lost control of the chamber for the first time since before the Civil War. The large GOP majority in the House during the 43rd Congress gave way to a 79-Member Democratic advantage in the 44th Congress. The extensive losses were blamed on a financial panic in 1873, along with multiple charges of corruption in President Grant’s administration. But many on Capitol Hill, including top House Republican James A. Garfield of Ohio, were wary that “a general apathy among the people” prevailed when it came to civil rights and the ongoing process of Reconstruction. Even the bill’s sponsor in the House, Benjamin Butler, was voted out of office in 1874. On the other hand, the 43rd Congress still had months before it was required to adjourn, and the electoral loss rallied Republican Representatives, who returned to begin the second session on December 7, 1874, determined not to adjourn without passing some form of civil rights legislation.⁸⁹

The sticking point on the final version of the civil rights bill became the section concerning public education. Opponents warned that integrated, federally funded schools would undermine the educational system, such that it existed, throughout the South. Black Members vigorously defended the education component of the legislation. Rainey would later point out in debate that “the only ground upon which these privileges and immunities are withheld,” he said, “is because of complexional differences.” John Lynch contended that increased federal funding for education was another way to realize equality in everyday life: “All share its benefits alike,” he said.⁹⁰

After a lengthy debate and multiple attempts to amend the legislation, however, the final version of the civil rights bill omitted all references to public education, as well as provisions ending discrimination in churches and cemeteries. These alterations proved decisive, and the bill passed the House and Senate in February before President Grant signed it into law on March 1, 1875, only two days before the end of the Congress. It was a partial victory. The law prohibited discrimination in juries, transportation, and public accommodations but also lacked effective enforcement power.⁹¹

The fact that Republicans, who within days would be relegated to minority status, managed to steer such a bill through the chamber was an achievement. But in their desperation to pass the measure, Republicans had left the Civil Rights Act of 1875 in such a weakened state that it did little to impede the creation of an insidious system of segregation in the South. Moreover, the limited protection that the legislation did afford would soon be stripped by the Supreme Court.

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