OP-ED: American history has been one ongoing compromise


American history has been one ongoing compromise

In late 1863, President Abraham Lincoln issued a "Proclamation of Amnesty and Reconciliation." Lincoln's proposed plan for reconstruction was prudent rather than legally perfect. It was, in essence, a compromise. Few remember its terms, largely because "reconciliation" ultimately required three constitutional amendments, decades of litigation, and hundreds of sit-ins, demonstrations and marches. Compromise, to paraphrase the Civil War historian C. Vann Woodward, is rarely logical and hardly ever ideal.

The basic problems confronting the nation at the close of the Civil War were clear to almost everyone: somehow the Southern states had to be restored to the Union; the war-ravaged economy of the South needed to be rebuilt; allegiance to the Union had to be rekindled among white Southerners; and the rights of freed blacks needed to be protected. The task was not just "very intricate and perplexing," as Ralph Waldo Emerson described it. Instead, it was a harrowing problem of political logic: On one hand, how to square sectional reconciliation with the demands for racial equality while respecting an entrenched tradition of self-determination.

The 13th, 14th, and 15th Amendments to the U.S. Constitution, which abolished slavery, guaranteed equal protection of the laws and the right to vote, arose out of these political problems. The amendments were products of political compromise.

With Congress and President Andrew Johnson working at cross purposes, the amendments were drafted to be intentionally ambiguous. Ambiguity satisfied both moderate Republicans, who wanted language that would neither disturb segregation nor expand freed blacks' access to jury service or suffrage, and radical Republicans, who wanted sweeping social and political change.

Compromise resolved the immediate political pressures felt by both Republican camps in Congress but left the resolution of the trickier questions to another age — and to another branch of government. In a very real sense the vagaries of the amendments invited judicial interpretation, and did so by design. And, in turn, judicial interpretation of the amendments depends in no small way upon what account of history a court adopts.

To say that the amendments were a product of political bargaining is not to minimize their import. After all, both the Declaration of Independence and the Constitution were products of compromise. And, like the Declaration and the Constitution, the Reconstruction amendments move beyond temporal political circumstance to express a certain view of the human person and the nature of law. But the origin of the amendments continues to engender considerable controversy over their true meaning and scope.

American history can be seen as one unending compromise: From 1787 to 1820 to 1850 to 1876, compromise has shaped and reshaped the republic. In evaluating the historical legacy and the future of the Reconstruction amendments, scholarship ranges from a review of the radical blueprint of the amendments' framers to consideration of the real politik that shaped accomplishments — and failures — of the Reconstruction era.

In one view, Reconstruction ends nearly 100 years after the passage of the amendments, in the denouement of the Civil Rights struggle over suffrage. Understood this way, what begins as political debate in Congress in the 19th century ends on the pavement of the Edmund Pettus Bridge in the 20th. As an Alabama paper acknowledged: "The Voting Rights bill was passed ... at the Edmund Pettus Bridge, when Col. (Al) Lingo's forces ... commenced to beat the daylights out of brought ... new shame to the state. ... Mark it well: Alabama passed this law."

Ancient history? Hardly. The Reconstruction amendments continue to shape our law and society: Congress relied on the 14th Amendment enforcement powers to pass the Religious Freedom Restoration Act in 1993. And in 2013, the Supreme Court concluded that portions of the Voting Rights Act no longer "made sense."

As we struggle to define the inherent rights of free people, the fundamental questions central to the debates of the Reconstruction era remain:

What is the nature of truth? What are the limits of government? And how is justice reconciled?

— Janice Rogers Brown is a federal judge on the U.S. Court of Appeals for the District of Columbia Circuit. She wrote this for The Philadelphia Inquirer.