By the standards Democratic Sens. Joe Manchin and Kyrsten Sinema have set for federal action on voting rights, the 14th and 15th amendments to the Constitution – two pillars of the post-Civil War effort to ensure equality for all Americans – would never have become law.
Every Democrat in Congress at the time voted against both the 14th Amendment, which sought to guarantee all Americans (including the freed slaves) equal treatment under the law, and the 15th Amendment (which attempted to ensure the freed slaves the right to vote). Yet, despite that opposition, the Abraham Lincoln-era Republican Party considered the amendments so critical to expunging the legacy of slavery and creating a new national floor of civil rights for all Americans that they muscled them through Congress with barely any dissenting votes from their members in each chamber.
Today, by insisting on preserving the filibuster, Manchin, Sinema (and perhaps some other less visible Democrats) are, in effect, declaring that Washington should not act to protect voting rights against the restrictive laws advancing across red states unless 10 Senate Republicans agree to do so. With that declaration, they are fundamentally inverting the decision by the Lincoln-era GOP to prioritize protecting minority rights in the country over ensuring minority input in the Congress.
“If you had the same formula some are suggesting now – ‘We’ve got to have a Republican or we can’t put this fire out’ – you wouldn’t have had the 14th or 15th amendments if that had been operative back then,” says Democratic Rep. John Sarbanes of Maryland, one of the lead sponsors of the sweeping voting rights legislation that cleared the House earlier this year but was blocked by a Republican Senate filibuster last week.
The starkly partisan confrontations about equality during the 1860s stand as one of the two moments when the US grappled with these issues on a sustained basis. The other came almost exactly a century later during the civil rights revolution of the 1960s, which presented a very different model for progress. The landmark Civil Rights Act of 1964 and Voting Rights Act of 1965 passed in a bipartisan manner, as the leadership and ideological center of each party in Congress united against a recalcitrant rump group of Southern segregationist Democrats.
But, while no historical parallel is exact, many historians and legal experts believe the “First Reconstruction” in the post-Civil War period, when one party had to act alone to safeguard civil rights, provides a much more relevant precedent for today’s sharply divided partisan and social dynamics than the bipartisanship of the “Second Reconstruction” during the 1960s. Now, as during the 1860s, the real choice may not be whether Congress acts to preserve voting rights on a bipartisan or partisan basis, but rather whether Congress acts on a one-party basis or not at all.
“The structure of our party politics now is more like the 19th century than the 20th,” says Richard Primus, a University of Michigan law professor who has written on the 1860s and 1960s. “We are not going to have a regionally based civil war, the way they did in the 1860s. But it seems naive to expect that the way out of the present situation is going to be with the significant bipartisan cooperation of leadership in the two political parties. … We can’t even get the two political parties to agree to investigate a violent assault on the Capitol building itself.”
The age of ‘4-party politics’
Though the second Reconstruction, during the 1960s, is much closer to our day chronologically, it may actually be more distant than the 1860s from our era in its political dynamics.
On paper, Democrats held huge majorities in both the House and Senate when they passed the historic Civil Rights Act of 1964. After President Lyndon Johnson’s landslide 1964 win, Democrats had amassed even larger majorities when Congress approved the Voting Rights Act in 1965; at that point, they held slightly more than a 2-to-1 advantage over the GOP in both chambers.
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Yet those numbers were misleading, because those majorities were swelled by a large contingent of very conservative Democrats from the “solid South” of former Confederate states whose voters still refused to elect Republicans a century after the Civil War.
Those deeply conservative and often openly racist Southern Democrats – led by figures such as Sens. Richard Russell of Georgia and James Eastland of Mississippi – backed the national Democratic agenda on some economic and many national security issues. But from President Franklin Roosevelt’s second term in the late 1930s through the mid-1960s, those Southern Democrats frequently joined with the most conservative Republicans in Congress to block initiatives from liberal Northern Democrats and the more progressive wing of the GOP (which mostly represented states along the East and West Coasts.) That blockade was most unyielding on any issue relating to civil rights.
Scholars termed this the age of “four-party” politics in Congress, as each party was split into two distinct factions. Anything that Congress passed in those years – what I called “the age of bargaining” in my 2007 book, “The Second Civil War” – required intense negotiation not only within the parties but between them, too. The civil rights measures of the 1960s were no exception. The Civil Rights Act of 1964 passed only after months of painstaking talks among Johnson, liberal Democratic Sen. Hubert Humphrey and GOP Senate leader Everett Dirksen produced an agreement that persuaded enough Senate Republicans to join with virtually every Northern Democrat to break the epic filibuster against the legislation backed by Southern Democrats and the most conservative Republicans. After the brutal attack on the civil rights marchers in Selma, Alabama, horrified the nation, the Voting Rights Act passed in 1965 with similar dynamics, though with much less resistance overall, and the segregationist Southern Democrats even more isolated in opposition.
So, while the civil rights advances of the 1960s drew support across party lines, they did so in a political era when the parties represented much more ideologically diverse coalitions – of both voters and elected officials – than they do today. In that period, when many conservative Americans still called themselves Democrats and many liberals identified as Republicans, the center-left of both parties often agreed with each other more than they did with the most conservative wings of their own parties. Tellingly, 1964 Gallup polling found significant splits in both parties over civil rights: Roughly half or more of Republicans said they supported the 1964 law, while about one-quarter to one-third of Democrats opposed it in polls throughout the year, according to data provided by Gallup.
“Partisan conflict was not a full reflection of existential or constitutional worldview in a way that we have come much closer to today,” says Primus. “And that meant it was possible to undertake some major legal reforms that the leadership of both parties could buy in to.”
‘The normal rules don’t apply’
As Primus suggests, the contrast in public opinion today is striking. The substantial share of Republican voters who backed civil rights during the 1960s made it easier for Republicans in Congress to support it, too. But today, polls show the vast majority of Republican voters, influenced by former President Donald Trump’s discredited claims of fraud, back the restrictive election laws approved in states such as Georgia and Texas. In one recent Georgia poll, 91% of Republicans said it was more important to tighten election security, compared with just 5% who said the top priority should be making it easier to vote. (Eighty percent of Democrats, by contrast, said expanding access to voting was more important.)
The support for voting restrictions among the party’s voters will make it almost impossible for congressional Republicans in meaningful numbers to support legislation reversing the new red state laws, says Lee Drutman, a senior fellow at New America, a center-left think tank, and author of a recent study of Republican attitudes on the 2020 election. Like other recent studies, Drutman’s analysis of 2020 polling data found that the Republican voters most suspicious of last November’s results, and most open to small-d anti-democratic sentiments, were those who express the most unease about the cultural and demographic changes reshaping America.
Because so many GOP voters believe “Democrats are trying to transform America into something unrecognizable,” Drutman notes, those voters have concluded that “the normal rules don’t apply, and it’s OK to do whatever it takes” to obtain power. Few, if any, elected Republicans will stand against a current that strong, he predicts, especially with Trump encouraging it; even the handful of Republicans who have denounced Trump’s fraud claims, such as Rep. Liz Cheney of Wyoming or Georgia Secretary of State Brad Raffensperger, have almost all praised the restrictive new state voting laws.
While today’s sharp party-line conflict over voting and civil rights departs from the dynamics during the 1960s, politicians from the 1860s would have no trouble recognizing it. The Republican Party was formed in the 1850s explicitly as a Northern coalition opposed to the spread of slavery; the Democratic Party, not only in its dominant Southern wing but also among its Northern members, resolutely opposed federal action to restrict slavery in the years before the Civil War and then fiercely fought the Republicans’ efforts to ensure rights and economic opportunities for the freed slaves after the war.
“The right of African American men to vote came to be … one of the definitions of what it meant to be a Republican,” says Columbia University historian Eric Foner, who is considered the foremost student of the Reconstruction era. “If you didn’t favor Black suffrage there wasn’t much room for you in the Republican Party. Democrats … were the White man’s party – they said that explicitly. Obviously, they had to accept that slavery was over … but they opposed Black suffrage into the 1870s and made it a major issue.”
A small minority of Democrats did support the 13th Amendment to the Constitution, formally ending slavery, that the Senate approved in 1864 and the House in 1865. (All but two of the 16 House Democrats who supported it were lame ducks who had been defeated in the GOP sweep of the 1864 election, as Foner highlighted in his 2019 book on the post-Civil War constitutional amendments, “The Second Founding.”)
But after that, not a single Democrat in the House or Senate voted for the 14th or 15th amendments. In fact, no Democrats in either chamber voted for any of the principal civil rights and Reconstruction bills that Republicans passed over the next decade, according to a compilation of the partisan breakdown of the votes recently posted by Harvard University political scientist Daniel Ziblatt. Although the amendments, in particular, and the other laws all required intense negotiation and compromise between “radical” Republicans, who wanted to thoroughly remake the South, and moderates in the party, who preferred a more cautious path, in the end no more than four Republicans voted against any of the key measures in the Senate and no more than five in the House (until the two final major bills in 1875).
‘We don’t care … if they vote for it or not’
Foner and Primus agree that the stark partisan alignment of these votes – and the uniform opposition from Democrats – did not discourage the Republican majorities from acting.
“They weren’t like Manchin. They didn’t give a damn if was bipartisan or not,” said Foner. “They just said, ‘We are in control, we are the party of the Union, we are the party of emancipation, the Democrats are the party of treason, they are the party of secession … of racism, and we don’t care … if they vote for it or not.’ It just reinforced their feeling that the Democrats were out of touch and didn’t respect the results of the Civil War.”
Cooperation from congressional Democrats, historians note, seemed especially unlikely to the Lincoln-era Republicans because over time many of the key measures – such as the Enforcement Acts of 1870 and 1872 and the Ku Klux Klan Act of 1871 – were passed specifically to counter the actions of White Southern Democrats, who were mounting violent attacks to prevent former slaves from voting or exercising other rights.
Sean Wilentz, a leading historian of 19th-century American politics at Princeton University, says Republicans in those years grasped something that Manchin and Sinema refuse to acknowledge: Legislators in Congress are highly unlikely to support federal action against what their own party members are doing in the states.
“We are now in that kind of situation,” Wilentz says. In opposing federal action to override restrictive state voting laws, he argues, “Republicans now are just as firm and unyielding as the Democrats were back in those days” in resisting military intervention against White racist violence across the South.
As historians have observed, even the radical Republicans of the era were operating within the limits of their time. One reason the 15th Amendment does not include a simple affirmation that all Americans (or even just all men) have a right to vote – which many scholars believe was a critical missed opportunity – is that some Western Republicans feared enfranchising Chinese immigrants and some in the North worried about enfranchising new arrivals from Europe, Foner notes. And as he points out, Republicans backed voting rights for freed Southern blacks not only because they believed it was right, but also because they thought it the best way to prevent secessionists from regaining power in the South – and to expand the Republican Party beyond its Northern base.
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“It is idealism, it is politics, it is nationalism, it is all of the above,” he says.
But the GOP also repeatedly demonstrated that it was committed enough to its civil rights agenda to employ aggressive tactics, and even change legislative rules, to advance it. After Lincoln was assassinated in 1865, his vice president, Andrew Johnson, a former Democrat who sympathized with the South, succeeded him as president and recognized White-dominated new governments across the former Confederate states; the GOP majority in Congress simply refused to seat their congressional representatives in the 1865 Congress that passed the 14th Amendment. Then after those Johnson-installed Southern governments uniformly refused to ratify the 14th Amendment, the GOP-controlled Congress passed legislation – overriding Johnson’s veto – that required states to do so before they would be allowed back into the union. In 1875, House Republicans even changed the chamber’s rules to end the ability of the Democratic minority, in effect, to filibuster the final civil rights act of the first Reconstruction era.
“They definitely played hardball,” says Foner.
‘Permanent minority rule’
To Primus, the experience in both the first and second Reconstruction periods sends a common message that it’s unrealistic for Manchin, Sinema and other Democrats hesitant about changing the filibuster to expect that Congress can safeguard civil rights without igniting significant partisan and social conflict.
“If you are someone who thinks that the reforms of the 1860s and 1960s are good things, it’s easy to look back at them as if they were templates and say, ‘All good people today agree those are good things and those are the kind of things we should do,’ without remembering that those things were intensely controversial when they happened,” he says.
After the disputed presidential election of 1876, the Republican willingness to defend the rights of freed slaves collapsed, and a combination of conservative Supreme Court decisions and restrictive voting laws that were copied from state to state through the South disenfranchised almost all Black voters across the region by the early 20th century, while also imposing the system of state-sponsored segregation that infused discrimination into every aspect of daily life. (Barriers to voting like the poll tax and literacy test passed from state to state across the South in those years the way limits on early and mail voting are diffusing now.) Those were the pernicious laws that Southern segregationists protected for decades in Congress, until the bipartisan coalitions of the 1960s finally uprooted them in the Civil Rights and Voting Rights acts under Johnson.
While today’s offensive against voting rights is often compared to the racist actions of the Jim Crow South (President Joe Biden has called the new laws “Jim Crow in the 21st century”), Wilentz says it actually more closely echoes the behavior of the South before the Civil War. Through the Jim Crow years, he notes, the Southern Democrats’ principal goal was defensive: to prevent the federal government from acting against segregation within their borders. They weren’t trying to expand segregation to new states.
But in the years before the Civil War, the South’s goal was offensive: to use its influence over the Democratic Party (and its institutional strength in the Senate and the Supreme Court) not only to prevent federal action against slavery but also to force its expansion into new states and territories, even though Southerners recognized this was opposed by the Northern states that had become a clear majority of the nation’s population. Northerners at the time derided these interlocked efforts as the machinations of “the Slave Power.”
Today’s Republican efforts to restrict voting across red states, Wilentz believes, are operating with a similar vision. These constraints, he says, are intended not only to suppress Democratic constituencies in those states, but by doing so, also to tip enough states that Republicans can control Congress and the White House, even if Democrats (who have won the popular vote in an unprecedented seven of the past eight presidential elections) win more votes nationwide.
By passing these restrictions, red state Republicans are “not just saying, ‘We want to be left alone to do our own thing [or] if we want to keep Black people down, we have every right to do it,’ ” Wilentz says. “It’s also by doing so that they assure themselves a national majority. And it’s minority rule. They [want to] achieve what the Slave Power failed to do: permanent minority rule.”
With those ominous stakes, Wilentz, like Primus, finds it inexplicable that Manchin, Sinema and perhaps other Democrats, by defending the filibuster, are effectively providing Senate Republicans a veto on whether Congress responds to the offensive against voting rights that their GOP colleagues are passing on an almost entirely party-line basis in red states.
One reason anti-slavery forces consistently lost ground in the decade before Lincoln’s election in 1860, Wilentz observes, is that they refused to acknowledge how much the Democratic Party, shaped by its ruling Southern faction, had “radicalized” since Andrew Jackson’s era three decades earlier.
“There were people living in the past,” he says.
Something similar may be happening now as Manchin and Sinema demand a traditional process of pursuing consensus on voting rights with Republicans who have shown themselves willing to radically curtail those rights in their quest to regain majority power, with or without support from a majority of voters.
