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Robert Kennedy's United States History Class



Learning Objective I:

Discuss the two constitutional theories that evolved around the question of Reconstruction.

Supplementary Material

LO I Recorded Lecture

LO I Notes

Reconstruction had been a subject of discussion in the North since the beginning of the war. As usual, the discussion took place on the plane of constitutional theory. The constitutional controversy centered around two points: (1) Were the seceded states in or out of the Union when the rebellion was crushed? (2) And, which branch of the Federal Government would control the process of Reconstruction.


Constitutional Controversy (1):


From the Northern premise that secession was illegal, strict logic reached the conclusion that former states of the Confederacy had always been and were now states of the Union with all the rights and privileges pertaining thereto. Both Presidents Lincoln and Johnson supported this view. They saw the states as indestructible and they were never out of the Union for the simple reason that they could not be.

This theory, though vigorously opposed by the Radical Republican leaders, received judicial support in the Supreme Court case of Texas v. White (1869) when Chief Justice Chase, speaking for the majority, stated:

"The Constitution, in all of its provisions, looks to an indestructible Union composed of indestructible States.... Considered, therefore, as transactions under the Constitution, the ordinance of secession... and all the acts of her legislature intended to give effect to that ordinance, were absolutely null. They were utterly without operation in law. The obligations of the State, as a member of the Union, remained perfect and unimpaired. It certainly follows that the State did not cease to be a State, nor her citizens to be citizens of the Union. If this were otherwise, the State must have become foreign, and her citizens foreigners. The war must have ceased to be a war for the suppression of rebellion, and must have become a war for conquest and subjugation .... Our conclusion therefore is, that Texas continued to be a State, and a State of the Union."

If on the contrary secession was valid , the South might consistently be treated as a conquered territory without any legal rights that the Union was required to respect. The Radical Republicans in Congress managed to prove to their satisfaction that the Southern states had lost or forfeited their rights and therefore could be treated as conquered states.


Upon what theory, then, could Reconstruction proceed? If the states were still in the Union, it was only the citizens who were out of their normal relations with the Federal Government, and these could be restored through the pardoning power of the President. This theory was supported by both Lincoln and Johnson.

(to the right is Thaddeus Stevens)


While brushing aside embarrassing legal obstacles, Radical Congressional leaders sought refuge in constitutional dialectics to justify their military rule of the South. Their argument was based on the clause in the Constitution that "the United States shall guarantee to every State a Republican Form of Government."


Yet, for three-quarters of a century this clause had been interpreted to mean that Congress would sustain the pre-existing governments, but now the Radicals wrenched it away from this traditional meaning and insisted that --for the Southern states at least--a "republican" form of government included Black suffrage.


(However, at the beginning of the Reconstruction era only six Northern states permitted the Black to vote, and two new states--Nebraska and Colorado--tried to come into the Union with suffrage limited to whites.


Constitutional Controversy (2):


This leads to the second constitutional question: Who should control the Reconstruction process, the President or the Congress? This question will be thoroughly addressed in Learning Objectives Two and Three.


Continue on to LO II

Rival Reconstruction Plans

The details of the graph will be provided in LO2 and LO3


 Ten Percent Plan

 Wade-Davis Bill

 Johnson Plan

 Reconstruction Act

Proposed by

  President Lincoln 1863

 Radical Republicans 1864 

   PresdientJohnson 1865

 Radical Republicans 1867

Conditions for former Confederate States to Rejoin Union

  • 10 percent of voters must swear loyalty oath to the Union
  • Must abolish slavery
  • Majority of white southerns must sign loyalty
  • Former Confederate leaders banned from office
  • Majority of white southerns must sign loyalty
  • Must ratify the 13 amendment
  • Former Confederat Leaders can vote and Hold Office
  • Disband State Governments
  • Must write new state constitutions
  • Must ratify the 14th Amendment
  • African Americans must be allowed to vote

Keith Hughes Explains

the Reconstruction Amendments 

Amendment 13 1865

Amendment 14 1868

Amendment 15, 1870