Reconstruction took place in the aftermath of the American Civil War between the Union and the breakaway states of the Confederacy. Between 1865 and 1877 the United States used military force to reincorporate Southern states into the Union while integrating formerly enslaved people into civic life. The process was so transformative of American law and politics that many historians refer to it as the nation’s “Second Founding.” Keep reading to learn more about Reconstruction and its contested legacy. 

The Civil War and Reconstruction Amendments

Most historians use the term Reconstruction to refer to the twelve years immediately following the end of the Civil War, when the states of the former Confederacy were occupied by federal troops who supervised the emancipation and integration of formerly enslaved people into the economic and political life of the South. However, the work of Reconstruction began before the war ended. As Union forces advanced into Confederate-held territory, many enslaved people took advantage of the opportunity to free themselves, oftentimes joining up with the Union armies. President Abraham Lincoln made the emancipation of enslaved people in the South official policy with the Emancipation Proclamation^[1]Howard W. Preston. Documents Illustrative of American History, 1606-1863 (1886). This document can be found in HeinOnline’s World Constitutions Illustrated. (officially known as Proclamation 95), which declared the emancipation of all enslaved people in the rebellious states (although, crucially, not in the handful of border states that remained loyal to the Union where slavery was still legal).

The Reconstruction Amendments are the legal legacy of the American Civil War. The work of composing and debating the Thirteenth,^[2]2022 Edition Annotating Interpretations to Various Articles of the Constitution 2023 (2023). Thirteenth Amendment: Abolition of Slavery. This document can be found in HeinOnline’s World Constitutions Illustrated. Fourteenth,^[3]2022 Edition Annotating Interpretations to Various Articles of the Constitution 2045 (2023). Fourteenth Amendment: Equal Protection and Other Rights. This document can be found in HeinOnline’s World Constitutions Illustrated. and Fifteenth^[4]2022 Edition Annotating Interpretations to Various Articles of the Constitution 2323 (2023). Fifteenth Amendment: Right of Citizens to Vote. This document can be found in HeinOnline’s World Constitutions Illustrated. amendments to the Constitution—which would come to be known as the Reconstruction Amendments—began before the end of the war (although the ratification only came after). The first of the three amendments, the Thirteenth, abolished slavery and other forms of involuntary servitude except—crucially—as a punishment for a crime. The second of the three, the Fourteenth, established the principles of equal protection and birthright citizenship, thus extending citizenship to all formerly enslaved people. According to many legal scholars,^[5]Orville Vernon Burton, The Creation and Destruction of the Fourteenth Amendment during the Long Civil War, 79 LA. L. REV. 189 (Fall 2018). This article can be found in HeinOnline’s Law Journal Library. the Fourteenth is arguably the most consequential amendment made since the drafting of the Constitution in terms of its continued impact on law. The final Reconstruction amendment, the Fifteenth, guaranteed the right to vote to all male citizens of the United States, regardless of race. White women would have to wait more than 50 years to gain the same right; for women of color, it was even longer.

The Johnson Administration and the Black Codes

Almost immediately after the end of the war, Southern legislatures and local authorities began passing laws, referred to as the Black Codes, that were specifically designed to negate the Reconstruction Amendments. For two years after the South’s surrender, these laws ensured that Black Americans in the South essentially remained confined to the plantations where they were previously enslaved. In many jurisdictions, slavery remained the de facto reality. Under the administration of Andrew Johnson, who succeeded Lincoln to the presidency following his assassination, former Confederates found a man apparently sympathetic to their cause. Johnson’s refusal to enforce laws in the former Confederacy led to a growing rift within his own Republican Party.

Andrew Johnson assumed the presidency in the midst of widespread outrage in the North over the assassination of Lincoln. He quickly came into conflict with his own Republican Party over what many perceived as his excessive leniency toward supporters of the former Confederacy—to whom he issued sweeping amnesty^[6]Jade A. DuBroy, Trump, Treason, and the Civil War: Learning Lessons from the Failure of the Post-Civil War Prosecutions, 66 ARIZ. L. REV. 527 (2024). This article can be found in HeinOnline’s Law Journal Library.—as well as his opposition to passing civil rights protections for formerly enslaved Black Americans. Johnson made no secret of his views on the formerly enslaved: “This is a country for white men,” Johnson wrote^[7]Michael A. Ross, The Supreme Court, Reconstruction, and the Meaning of the Civil War, 41 J. SUP. CT. HIST. 275 (November 2016). This article can be found in HeinOnline’s Law Journal Library. to the governor of Missouri.

When Congress passed the Civil Rights Act of 1865,^[8]To protect all persons in the United States in their civil rights, and furnish the means of their vindication., Chapter 31, 39 Congress, Public Law 39-31. 14 Stat. 27 (1866). This document can be found in HeinOnline’s United States Statutes at … Continue reading the first civil rights legislation in American history, Johnson vetoed the law. However, Congress overrode Johnson’s veto, and enacted the law, which strengthened protections for formerly enslaved people and required enforcement of the Reconstruction Amendments. The acrimonious relationship between Johnson and his own party, most of whom favored more vigorous enforcement of civil rights laws, did not improve from there. Johnson was ultimately impeached, predominantly by members of his own party, and narrowly avoided being expelled from office. He served out the remainder of Lincoln’s term, but failed to win a nomination for another term in office. One of his last acts in office was to declare amnesty for all Confederate soldiers, regardless of rank, on Christmas Day 1868.

Military Reconstruction and the War against the Klan

The man who won the Republican nomination, and the presidency, was Ulysses S. Grant, the former commander of the Union armies who defeated the Confederacy’s principal army in the field, the Army of Northern Virginia. Although Grant had a reputation as a ruthless commander, he campaigned under the slogan “let us have peace.”

Grant oversaw the establishment of schools and training programs for formerly enslaved people in the South, and his administration promoted enfranchisement and civic engagement for Black men. He also continued Johnson’s policy of general amnesty for former Confederate soldiers and officials, but adopted a much tougher approach to the increasingly violent resistance to Reconstruction in the South. Following the surrender of the Confederacy in 1865, disgruntled Confederate soldiers organized the Ku Klux Klan, secretive networks of white men who used terror and violence to intimidate white Northerners with the Freedmen’s Bureau and to exclude Black men from civil society. The Klan targeted Black political figures with assassinations, with the ultimate goal of disenfranchising the Black community altogether.

By the time that Grant assumed office, Klan violence had grown to pose a serious threat to the recently-won freedoms of Black Americans in the South. A worried Congress conducted numerous hearings^[9]Joint Select Committee to inquire into condition of late insurrectionary States. (1871-1872). This document can be found in HeinOnline’s U.S. Congressional Serial Set. on the intensifying insurgency in the former Confederacy. At Grant’s urging, Congress passed the Enforcements Acts of 1870 and 1871, also commonly referred to as the First Ku Klux Klan Act^[10]To enforce the right of citizens of the United States to vote in the several States of this Union, and for other purposes., Chapter 114, 41 Congress, Public Law 41-114. 16 Stat. 140 (1870). This document can be found in HeinOnline’s United … Continue reading and the Second Ku Klux Klan Act.^[11]To enforce the provisions of the fourteenth amendment to the Constitution of the United States, and for other purposes., Chapter 22, 42 Congress, Public Law 42-22. 17 Stat. 13 (1871). This document can be found in HeinOnline’s United States … Continue reading

The acts granted the federal government extensive powers to use force to protect the civil rights of Black Americans and ensure compliance with the Reconstruction Amendments. Grant suspended habeas corpus^[13]Kathryn E. Wetherbee, Looking for Comity in the Habeas Corpus World: The Suspension Clause in Relation to the AEDPA as Amended by the USA Patriot Act, 76 MISS. L.J. 1045 (Spring 2007). This article can be found in HeinOnline’s Law … Continue reading in nine counties in South Carolina, and deployed federal troops to polling places and other civic institutions to ensure the equal protection of Black Americans under the law.

The authority of the federal government to protect civil rights from state government action was further enshrined in the Civil Rights Act of 1875.^[14]An act to protect all citizens in their civil and legal rights. 18 Stat. 335 (1875). This document can be found in HeinOnline’s United States Statutes at Large. However, by 1876, as Grant’s term drew to a conclusion, the interest and investment of Northern Republicans in the project of Reconstruction had waned significantly. The political will for maintaining the military occupation of the South did not exist any more. In the end, Reconstruction was brought to an end with a secretive backroom deal that withdrew federal troops from the South, thus permitting Southern legislatures to enact laws removing the remaining civil rights protections from Black Americans.

The End of Reconstruction and its Legacy

Reconstruction succeeded in securing additional rights for formerly enslaved people in the years following the Civil War, although even at its best this fell far short of real equity and equality for Black Americans. For the Reconstruction generation of Black Americans, even these constrained rights proved to be short lived. In a series of rulings in 1883 known as the Civil Rights Cases,^[15]Civil Rights Cases, 109 U.S. 3, 62 (1883). These cases can be found in HeinOnline’s U.S. Supreme Court Library. the United States Supreme Court ruled that the Civil Rights Act of 1875 was unconstitutional and overturned many of the key protections of the Reconstruction Amendments by ruling that, although slavery was illegal, private acts of racial discrimination were legal. This paved the way for the establishment of the Jim Crow regime in the South, which disenfranchised Black Americans in the South for most of the century that followed.

Despite this, the Reconstruction Amendments fundamentally altered the legal balance of power^[16]Edward Cantu, Normative History and Congress’s Enforcement Power under the Reconstruction Amendments, 21 TEX. REV. L. & POL. 119 (Fall 2016). This article can be found in HeinOnline’s Law Journal Library. between the federal and state governments, resulting in the comparatively powerful federal government and comparatively weak state governments of the present day. Beyond this constitutional significance, Reconstruction was significant for establishing a precedent for the federal government to intercede on the behalf of minorities facing oppression at the hands of state governments. Beginning with the Eisenhower administration, and extending throughout the Civil Rights era, the federal government demonstrated a renewed willingness to exercise this power to protect the civil rights of Black Americans in the South.

The legacy of Reconstruction continues to be the subject of debate amongst constitutional scholars. Traditionally, scholars have often framed Reconstruction as a sort of “redemption”^[17]Michael P. Zuckert, Completing the Constitution: The Thirteenth Amendment, 4 CONST. COMMENT. 259 (Summer 1987). This article can be found in HeinOnline’s Law Journal Library. of the flawed-but-ultimately noble ideas expressed by the writers of the Constitution. In recent years, many scholars have rejected the originalist premise of this interpretation, and instead contend, as Kermit Roosevelt III writes:^[18]Kermit Roosevelt III, Reconstruction as Revolution: The Fourteenth Amendment and the Destruction of Founding America, 25 U. PA. J. CONST. L. 1073 (July 2023). This article can be found in HeinOnline’s Law Journal Library. “Rather than the vindication and triumph of Founding America, the Civil War and Reconstruction are its repudiation and defeat.” In the view of Roosevelt and those who embrace a living constitutionalist perspective on Reconstruction, it represents the rejection of an irredeemable social system built upon the foundation of human servitude.

Further Reading

If you’re interested in researching the history of the American Civil War and civil rights in the United States, check out HeinOnline’s  Civil Rights and Social Justice and Slavery In America and the World databases, both of which can be found in our Social Justice Suite which is included in all HeinOnline Core subscriptions and free of charge to any interested organization. Or you can take a look at one of our many blog posts on the topic.