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Congress and Judicial Review of the Reconstruction Acts in Mississippi
This short post is number fifteen in a historical review of
Mississippi’s Whig/Reconstruction senator and governor J. L. Alcorn and my
third overview of the enactment of the Reconstruction Acts in Mississippi (see
my 13 and 24 January 2015 posts below). I will pick up with Alcorn proper and
his actions within this federally-mandated setting (1866-1867) in my next post.
The Southern states’ rejection of the unconstitutional
Fourteenth Amendment in the summer of 1866, in tandem with the North’s
validation of the Radical Republican agenda in Congressional elections that
fall, provided the Radicals the leverage they needed to assume their coveted
desire to dictate Reconstruction. The Southern civil governments which had been
operating effectively for more than a year were swept away and martial law
established across the South. Private law remained fundamentally unchanged, but the
military commanders were vested to modify or supersede it at their discretion. But the main role of
the district commanders—and this is oh so telling—was to maintain order,
register a new electorate (which for the most part enfranchised the
non-taxpayer and disfranchised the taxpayer), and direct the movement for the
reestablishment of “republican” government. Make that “Republican” government
and you’ve got the true picture. Mississippi and the other Southern states had
had republican governments since statehood. They’d never been constitutionally
challenged nor should they have been.
Under martial law, the district military commanders had
absolute authority over life, liberty, and property, except that death
sentences had to be approved by the president.
The Radicals now argued that with the Southern states’
attempt to withdraw from the Union and in waging war against the United States
(read that “in defending itself against Northern aggression”) it had forfeited
its status as states. This despite the fact they’d nullified their ordinances
of secession a year earlier. James Garner in his 1901 Reconstruction in Mississippi stated the Boutwell committee (creator
of the Reconstruction Acts, see my 24 January post below) might have hit closer
to the mark by claiming the Southern states had forfeited their right to be
viewed as states if there was anything in the Constitution about a class of
states not being equal to the original states. And what pray tell would give
Congress the right to define such status? So after one post-war year operating as
states, Congress decided the Southern states were not states—and used as its
primary arbiter the fact that Congress had yet to guarantee the states that
“Republican” form of government.
Now, the only recourse the South had was through the courts.
The state of Mississippi applied to the Supreme Court for an injunction against
President Johnson and the district commander arguing that the state had nullified
the articles of secession approved by a portion of the population; that the
state had always been a member of the Federal Union (wasn’t that the
administration’s argument all the time?) and there was nothing in the
Constitution that gave Congress the authority to expel a state from the Union.
I feel compelled to
share this with my readers: Upon learning of the above cited injunction put
forth by Judge Sharkey and Robert J. Walker, The Jackson Clarion expressed its offense thusly calling the
argument “...a plea of not guilty to an act which is unjustly alleged to be a
crime, and which all the world knows the state did deliberately commit....” I
can just see Judge Sharkey pulling his hair out by this time, but The Clarion’s concern primarily seemed
to be for Jefferson Davis who was still in prison for the “crime” of treason.
In the injunction, Sharkey and Walker further maintained
that President Johnson was being coerced to institute martial law by Congress
and the decision belonged in the court not with the executive. The Supreme
Court refused to file the bill on the grounds that for reasons of expediency
and policy, the president should not be interfered with by the courts in
performance of his duties. No opinion was expressed as to the constitutionality
of the Reconstruction Acts.
Now the South decided to shoot a little lower on the totem
pole. Mississippi filed an injunction in conjunction with a joint bill (Georgia vs Stanton), against the Secretary of War (Stanton), the General of the Army (Grant), and in Mississippi’s case,
the Commander of the Fourth District (General Ord). In this case the Supreme
Court said it held no jurisdiction over the subject matter in the bill and
deemed it unimportant to examine the question as it respected jurisdiction over
the parties defendant. The matter was deemed political vice dealing with persons or property. I beg your pardon? Political? This was a “political” issue? Yeah, it was a political issue all right, on the part of Congress and the Supreme Court, but not for the South. Like I’ve said in my earlier posts, tyranny reigned. So, this whole matter—the question
really being the constitutionality of the actions taken by Congress as a result
of the Reconstruction Acts—was not reviewed by the Supreme Court of the United
But soon after, the district commander arrested one William
McCardle, a Vicksburg newspaper publisher, for circulating “incendiary” articles
regarding Reconstruction. After the Circuit Court of the Southern District of
Mississippi sent him back into custody under the Reconstruction Acts, he
invoked habeas corpus, and it looked like the Supreme Court was actually gonna
have to look at it. It would have been a great win for the Radicals, but truth
is, they were afraid the Court’s looking at McCardle’s case would undo the
Reconstruction Acts in their entirety, so they withdrew McCardle’s case from
appellate review, exercising the powers granted to Congress under Article III
Section 2 of the Constitution. Needless to say, the South challenged the move
which had appeared so promising in forcing the Supreme Court to actually look
at the Reconstruction Acts, which anyone with half a brain knew to be
unconstitutional. The Chief Justice of the Supreme Court upheld Congress’ right
to pull the case under the “exceptions clause”. Here it is y’all, the
“In all other cases before
mentioned the Supreme Court shall have appellate jurisdiction, both as to Law
and Fact, with such Exceptions, and under
such Regulations as the Congress shall make.
So Congress made the “exception”. You all realize that Salmon
P. Chase, Lincoln’s erstwhile, rabid abolitionist and egomaniacal Secretary of
the Treasury was the Chief Justice of the Supreme Court when all these
nonsensical rulings in favor of Radical tyranny were being made, don’t you?
Anyone other than me wonder who directed Congress how to get out of the mess it
had gotten itself into with McCardle—and got himself off the hook?
The way was now clear for the coup de grace—passage of the
For earlier posts on Alcorn, best read in sequence from
oldest to most recent, see 17 February, 24 March, 16 April, 17 July, 24 July,
18 September, 9 October, 18 October, 5 November, 22 November, 15 December, and
29 December 2014.