The Constitution and the Court during Reconstruction

Federalism After the Civil War

In the hands of the Reconstruction Congress, the enforcement power under the Civil War Amendments seemed to portend a greatly diminished role for the states in the new constitutional order.  The well-established power of the federal courts to exercise judicial review meant that federal courts would continue to have a significant say in defining the constitutional powers of Congress and the states as the nation moved forward.  Therefore, the make-up of the federal courts and the judges’ views of the appropriate constitutional relationship between the national government and the states were very important.  

Tennessean Andrew Johnson assumed office after Lincoln’s death.  Before the Civil War, Johnson had defended the constitutionality of slavery, but he had not supported secession.  As President he advocated a much more moderate approach to Reconstruction than was being taken by Congress.  That stance put him at odds with congressional Republicans. 

In the first major post-war legislation affecting the federal courts, Congress in 1866 redrew the boundaries of the federal circuit courts, decreased their number from ten to nine, and reduced the size of the Supreme Court from ten to seven.  The reduction was to be accomplished through deaths and resignations. The result was that Johnson was prevented from making any Supreme Court nominations during his presidency, and the influence of southerners on the court was reduced.   Three years later, in 1869, after Johnson was out of office, Congress increased the size of the Supreme Court to nine, giving Republican Ulysses Grant several opportunities to nominate justices.   That year, the court also issued its first opinion about the nature of American federalism in the wake of the Civil War.  The case, Texas v. White (1869) grew out of a convoluted financial transaction with ties to the war.  

Texas v. White (1869)

Texas had been admitted to the Union in 1845 amid disagreements about its northern and western boundaries.  Texas claimed as part of its territory land including that is now the states of New Mexico, Kansas, Oklahoma, Colorado, and Wyoming.  These areas, in turn had been embroiled in the divisive issue of slavery in the territories.  Texas officials agreed to compromise on the location of the state’s borders in return for the United States assuming some $10 million of the state’s indebtedness.  As part of that settlement, the United States issued $5 million worth of gold indemnity bonds, payable by 1864 to the State of Texas or bearer, at a rate of 5% interest.  The Texas legislature passed a statute requiring the governor to sign the bonds before they could be sold.  Most of the bonds were sold and contained the signature of Governor G.W. Pashal.  But some were still in the Texas treasury when the Civil War broke out.  

Texas seceded from the Union in 1861.  In 1862, the confederate legislature authorized the sale of up to $1 million of the gold bonds that remained in the Texas treasury to help defray the cost of the war.   The confederate legislature authorized the Texas Military Board to give the gold bonds to George White and John Chiles in return for their promise to deliver medical supplies and other goods to aid the Confederacy.  Governor Pashal’s signature was not on those bonds.  

White and Chiles did not uphold their end of the bargain, claiming that a group of disbanded soldiers had looted the supplies and goods that they had assembled before they could be delivered.  The confederate government of Texas then agreed to let them repay the military board with relatively worthless bonds that had been issued by the Confederate States of America. 

Opinion of the Court

In 1865, after the Confederate states had been defeated in the Civil War, President Johnson appointed a new governor of Texas and directed formation of a reconstruction government. The provisional state government, now loyal to the Union, invoked the Supreme Court’s original jurisdiction in a lawsuit against White and Chiles to recover the gold bonds.  White and Chiles moved to dismiss the suit, contending that the Supreme Court lacked jurisdiction because Texas was now a conquered province and therefore could not sue in the courts of the United States.  

The Supreme Court, in an opinion by Chief Justice Chase, held that Texas could proceed with its lawsuit and that the confederate government of Texas never had legal authority to issue the gold bonds to White and Chiles.  The state of Texas retained title to those bonds.  To arrive at that holding, the Supreme Court had to decide several important constitutional questions.  The first was whether Texas had a right to secede from the Union.  The court held that it did not.

When. . .Texas became one of the United States, she entered into an indissoluble relation.  All the obligations of perpetual union, and all the guaranties of republican government in the Union, attached at once to the State.  The act which consummated her admission into the Union was something more than a compact; it was the incorporation of a new member into the political body.  And it was final.

Accordingly, Texas never lost its status as a state.  However, the rights of the state and of its citizens were suspended during the Civil War.  Reconstruction following the war, Chase wrote, was a political matter within the power of Congress to resolve. 

Having declared the union perpetual, the next question was the status of states within that union.  Chase wrote:

[T]he perpetuity and indissolubility of the Union by no means implies the loss of distinct and individual existence, or of the right of self government by the States . . . .  Under the Constitution, though the powers of the States were much restricted, still, all powers not delegated to the United States, nor prohibited to the States, are reserved to the States respectively, or to the people . . . . Not only, therefore, can there be no loss of separate and independent autonomy to the States, through their union under the Constitution, but it may be not unreasonably said that the preservation of the States, and the maintenance of their governments, are as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the National government.

The Civil War, Chase concluded, had not altered the mercurial nature of the complex relationship between the national government and the states under the United States Constitution:  “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.”

Shifting Relationships Between State and National Government

Since Texas v. White, the court’s interpretation of the relationship between the states and the national government has shifted several times.  Generally, during times of economic emergency and war, the court has favored the powers of the national government and reduced the states to a subordinate position.  During times of prosperity and relative political calm, the court has limited the powers of the national government and recognized the extensive powers of the states to protect the public health, safety and welfare of their citizens under the “reserved powers” of the Tenth Amendment.