Grant Chooses Reconstruction: The Enforcement Acts

On October 17, 1871, Ulysses Grant signed a proclamation no peacetime president had ever signed. The document suspended the writ of habeas corpus in nine counties of upstate South Carolina, naming York, Spartanburg, Union, Marion, Lancaster, Chester, Chesterfield, Newberry, and Fairfield. Federal soldiers under Major Lewis Merrill would arrest suspected members of the Ku Klux Klan without judicial warrant, hold them without bail, and produce them for trial in federal circuit court at Columbia. The proclamation rested on the Ku Klux Klan Act passed six months earlier, which authorized the president to declare a state of insurrection and use the executive’s emergency powers against organized political violence. The legal authority was untested. The political risk was substantial. The only nineteenth-century precedent for a peacetime habeas suspension was Andrew Jackson’s military rule of New Orleans in 1815, which had ended with a judge fining Jackson for contempt of court.

The proclamation was the peak of something larger. Between May 1870 and the end of 1872, Grant signed three federal statutes that together represented the most ambitious assertion of federal authority over private violence in American history to that point. His Justice Department, created by Congress in June 1870 specifically to handle Klan prosecutions, brought more than three thousand indictments against suspected night riders across the former Confederacy. Federal juries returned roughly six hundred convictions. Attorney General Amos Akerman, the Georgia lawyer Grant appointed in November 1870, traveled to South Carolina personally to oversee the prosecutions and write letters home that read like dispatches from a war zone. The Klan was, by 1872, militarily defeated in the Carolina upcountry. The infrastructure of Reconstruction-era civil rights had, for two years, real federal teeth behind it.

By 1874 it had nothing. The political coalition that sustained federal enforcement fractured under the weight of a financial panic, a Liberal Republican defection, an Amnesty Act that restored voting rights to almost all ex-Confederates, a Supreme Court that began gutting the Fourteenth Amendment in the Slaughterhouse Cases of 1873, a Democratic House elected in the 1874 midterms, and a Grant administration that quietly retreated from the prosecutions Akerman had pursued so aggressively. Akerman himself was forced out of the cabinet in December 1871, just six weeks after the South Carolina proclamation, and was replaced by George Williams of Oregon, who would prove far less committed to the work. By the time of the disputed 1876 election and the Compromise of 1877, federal Reconstruction was over. The Klan, defeated as an organization, had been replaced by less centralized but equally effective successor groups, the White Leagues of Louisiana and the Red Shirts of South Carolina, that operated openly because they no longer needed to hide.

This article reconstructs the decision Grant made between 1870 and 1872. Not the famous decision, which would be his choice to retreat. The earlier decision, which has been comparatively under-told. Why did a president who had won the 1868 election on the slogan “Let us have peace” choose, two years into his administration, to wield federal executive power against political violence in the South at a scale that would not be matched again until the Second World War? What did he believe his constitutional and political authority permitted? Where did the resistance come from and how did he answer it? When and why did he begin to waver? The reconstruction matters because the choice was not foregone. The conventional view in 1868, even among Radical Republicans, was that Reconstruction would be handled primarily through state governments, the army’s residual presence under the Reconstruction Acts of 1867, and constitutional amendment. The choice to make the federal executive branch a frontline prosecutor of private violence was a development of 1870 and 1871, and it required Grant to override his own initial caution and his administration’s institutional resistance.

The verdict this article reaches is that Grant’s 1870 through 1872 enforcement campaign was real, substantively effective in its core theaters, and constitutionally bolder than either his defenders or his critics have typically acknowledged. The October 1871 habeas suspension was both legally aggressive and substantively necessary. The campaign collapsed not because federal power proved inadequate to the task, though there were genuine capacity constraints, but because Grant himself, the Republican Party, and northern opinion abandoned the work before it was completed. The institutional infrastructure created in 1870 (Justice Department, Solicitor General, federal supervisor system for elections, civil rights jurisdiction) survived even after enforcement waned, and would be reactivated by Eisenhower in 1957 and Kennedy in 1962 to enforce school desegregation under legal authorities Grant’s lawyers had pioneered. The eighty-year dormancy between the 1877 retreat and the 1957 reactivation is the longest gap in federal civil rights enforcement in American history. The decision to begin the work, and then to abandon it, is the central drama of the Grant presidency.

The Setup: Why the Klan Existed and Why the States Could Not Stop It

Understanding what Grant decided requires understanding what he was deciding about. The Klan that the October 1871 proclamation targeted was not the Klan of popular imagination, the costumed brotherhood that Birth of a Nation later romanticized. It was a paramilitary insurgent organization whose specific political purpose was to prevent the implementation of the Fourteenth and Fifteenth Amendments by murdering or terrorizing the federal officeholders, state legislators, Union League organizers, schoolteachers, and rank-and-file Black voters who together constituted Reconstruction’s political infrastructure. The organization was founded by six Confederate veterans in Pulaski, Tennessee, in May or June 1866. Its founders included Calvin Jones, John C. Lester, Frank McCord, Richard Reed, James Crowe, and John Kennedy, all of whom had served in Confederate units and most of whom were lawyers. The initial purpose was social, in the sense that fraternal orders are social, but the political function emerged within months as the group’s rituals were adopted by other ex-Confederate veterans across Tennessee and into Mississippi, Alabama, Georgia, and the Carolinas. By the spring of 1867, when Congress passed the First Reconstruction Act establishing military districts in the unreconstructed South, the Klan was operating in every former Confederate state and was led, in nominal terms, by Nathan Bedford Forrest as Grand Wizard.

Forrest’s elevation is itself a key fact. The former Confederate cavalry general had presided over the April 12, 1864 massacre at Fort Pillow, Tennessee, in which Black Union soldiers were killed after surrendering. Whether or not Forrest personally ordered the massacre, which he denied and which historians continue to debate, his selection as Grand Wizard signaled that the Klan understood itself as the continuation of Confederate military resistance by other means. The hoods and rituals were theater. The function was paramilitary. The 1869 Klan organizational documents, captured later in federal raids and reproduced in the 1872 congressional Joint Select Committee report, describe a command structure of dens, provinces, dominions, and realms, with elected officers at each level. The members were organized into companies under captains. The pattern of violence was specific and political. Federal investigators identified, in 1871, Klan attacks against white Republican officeholders, freedmen who attempted to vote, freedmen who attempted to organize, freedmen who acquired property, schoolteachers who taught freedmen’s children, judges who issued unfavorable rulings, militiamen who tried to enforce state law against Klan activity, and anyone, white or Black, who testified against Klan members in court.

The numbers are difficult to fix because the violence was decentralized and contemporary record-keeping was poor in counties where Klan presence was strongest. Eric Foner’s Reconstruction: America’s Unfinished Revolution estimates that several thousand Black men, women, and children were killed in Klan-related violence in the South between 1866 and 1872, with concentrated peaks in Mississippi, Alabama, Tennessee, Georgia, and South Carolina during the 1868, 1870, and 1872 election cycles. The Camilla, Georgia massacre on September 19, 1868, in which a Republican political march was attacked by a deputized white mob and at least nine Black marchers were killed, is one of the better-documented atrocities. The Opelousas massacre in Louisiana the same month killed somewhere between 150 and 300 Black residents in retaliation for a Republican newspaper editor’s beating of a young Democratic operative. The Meridian, Mississippi riot of March 1871, which killed approximately thirty Black residents and the white Republican judge presiding over a hearing about earlier violence, was the immediate trigger for the Ku Klux Klan Act passed five weeks later. The pattern across these events was the same. State and local authorities were either unable or unwilling to investigate, prosecute, or punish the perpetrators. Witnesses were murdered or intimidated into silence. Grand juries refused to indict. Petit juries refused to convict. State militias, where they existed and were not themselves dominated by ex-Confederates, were outnumbered and outgunned by the irregular forces the Klan could mobilize at short notice.

This was the practical problem Grant inherited. The Fourteenth Amendment, ratified July 9, 1868, had created a national citizenship and a federal guarantee of equal protection and due process under state law. The Fifteenth Amendment, ratified February 3, 1870, had prohibited racial discrimination in voting. The Reconstruction Acts of 1867 and 1868 had imposed military oversight on the unreconstructed states and required them to adopt new constitutions guaranteeing Black suffrage as a condition of readmission to the Union. By the spring of 1870 every former Confederate state had been readmitted under the new constitutions and was theoretically a fully restored member of the Union. The constitutional and legal architecture of Reconstruction was in place. What was not in place was enforcement. State governments in the readmitted South lacked the police capacity, the judicial independence, and in many cases the political will to enforce the new constitutional order against organized terrorism. Federal authority under the prior Reconstruction Acts had been military and was constitutionally suspect after readmission. The Fourteenth and Fifteenth Amendments contained section five and section two enforcement clauses respectively, giving Congress power to enforce by appropriate legislation, but Congress had not yet passed legislation specifying what that enforcement would look like in practical, day-to-day terms.

Grant himself had won the November 1868 election by 53 percent to 47 percent against Democrat Horatio Seymour, a New York governor whose campaign had been animated explicitly by white supremacist resistance to Reconstruction. The Republican platform had endorsed Black suffrage in the South while permitting northern states to choose their own positions on the question, an inconsistency that would haunt the party for the next four years. Grant’s slogan, “Let us have peace,” drawn from his May 1868 nomination acceptance letter, had been read by different audiences as different things. To moderate Republicans it meant reconciliation, an end to the bitterness of impeachment and confrontation that had defined Andrew Johnson’s last two years. To Radical Republicans it meant peace through enforcement, the restoration of order in the South through the firm assertion of federal authority. To southern Democrats it meant withdrawal, an end to military occupation and federal interference in state affairs. Grant had not committed himself unambiguously to any of these readings. The decision he would face in 1870 and 1871 was which “peace” he had meant.

The political coalition supporting him was already showing strain. Charles Sumner of Massachusetts and Thaddeus Stevens of Pennsylvania, the Senate and House standard-bearers of Radical Republicanism, had differed sharply with Grant during his first months in office, particularly over Grant’s failed attempt to annex Santo Domingo, which Sumner opposed as a project that would damage the existing Black republic of Haiti and which Grant pursued with personal intensity. Stevens had died in August 1868, leaving Radical leadership in the House diminished. Carl Schurz of Missouri, a German revolutionary émigré and former Union general who had served as Grant’s minister to Spain, would by 1872 lead a Liberal Republican defection that nominated Horace Greeley to challenge Grant’s reelection. The Republican coalition in 1869 and 1870 was held together by Reconstruction’s unfinished business, but the cracks were already visible. Grant could see, as the violence reports from the South accumulated through 1869 and into 1870, that the choice he faced was time-limited. The political window for federal action would not stay open indefinitely.

The reports were specific. Tennessee Governor William Brownlow’s January 1869 message had described “a reign of terror” in middle and western Tennessee, with Black families fleeing rural counties and white Republicans afraid to attend their own party meetings. North Carolina Governor William Holden’s June 1869 letter to Grant requested federal troops to suppress what Holden called “an organized rebellion against the laws of the State.” Mississippi Governor James Lusk Alcorn’s correspondence with the War Department through 1870 detailed Klan attacks in Monroe County, Lowndes County, and along the Tombigbee River corridor. South Carolina Governor Robert Scott’s October 1869 dispatch to Washington reported that the upcountry counties of York, Spartanburg, and Union had effectively passed out of state control. Grant read these reports. The War Department under William Belknap forwarded them. The Justice Department, which did not yet exist as a unified department, was scattered across attorneys general and district attorneys who lacked coordination or central authority. The infrastructure to act did not exist. The political authority to create it would have to come from Congress.

This is the situation in which the Enforcement Acts of 1870 and 1871, and the simultaneous creation of the Justice Department, were drafted. They were not abstract assertions of federal supremacy. They were responses to specific, named, documented patterns of political violence in specific counties of specific states. The men who drafted them, primarily John Bingham of Ohio in the House and Oliver Morton of Indiana in the Senate, with substantial input from Sumner, George Boutwell of Massachusetts, and Lyman Trumbull of Illinois, were operating from a record that contemporary readers can still consult in the Congressional Globe debates and the 1872 Joint Select Committee report. The premise of the legislation was that the Fifteenth Amendment’s protection of Black voting rights and the Fourteenth Amendment’s protection of equal civil rights would be nullified in fact, regardless of what the Constitution said in text, if federal executive power could not be brought to bear against the private violence that prevented their exercise. The constitutional theory underpinning the legislation, developed primarily by Bingham, was that the section five enforcement clause of the Fourteenth Amendment authorized federal criminal jurisdiction over actions that, while nominally private, were performed under color of state inaction or state complicity. This theory would be heavily contested by federal courts beginning in 1873 and would be substantially defeated by 1883, but in 1870 it was the operating premise. Grant did not invent the theory. He chose to execute on it.

The First Enforcement Act, May 31, 1870

The First Enforcement Act, also called the Civil Rights Act of 1870 or the Force Act, passed the House on May 16, 1870 by a vote of 133 to 58 and the Senate on May 25 by 48 to 11. Grant signed it on May 31. The statute, twenty-three sections long, addressed three distinct concerns. Sections one through six criminalized interference with voting on racial grounds, with penalties up to $5,000 and ten years in prison for officials who refused to permit registration or voting, and matching penalties for private persons who used force, bribery, or intimidation to prevent Black men from voting. Sections seven through fourteen extended federal criminal jurisdiction to private conspiracies that interfered with the exercise of federally protected rights, including the rights enumerated in the 1866 Civil Rights Act (the right to contract, to sue, to give evidence, to inherit and convey property). Sections fifteen through twenty-three addressed naturalization fraud, which had been a parallel concern in New York City where Tammany Hall had organized mass illegal naturalization of recently arrived immigrants to inflate Democratic vote totals.

The constitutional theory was Bingham’s. Sections one and two of the Fifteenth Amendment, ratified four months earlier, provided that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race” and that “Congress shall have power to enforce this article by appropriate legislation.” Bingham argued, and Grant’s lawyers later argued in court, that the enforcement clause permitted federal criminal jurisdiction over private as well as state action when private action functioned to deny the federally protected right. The argument was novel. Prior to 1870, federal criminal jurisdiction over violence against persons had been limited to specific federal contexts: violence on federal property, against federal officers, in federal territories, against foreign diplomats. A private murder in a state, even a politically motivated one, had been a state crime. The First Enforcement Act asserted that when the private murder was committed for the purpose of preventing the victim from exercising a federally protected right, it became a federal crime.

The act’s first use came almost immediately. In November 1870, federal supervisors at polling places in New York City detected widespread fraudulent registration. The Justice Department, created by Congress in the same legislative session through the Act of June 22, 1870, brought charges that produced the first major federal voting-rights convictions of the Reconstruction era, though notably not in the South where the violence had concentrated. The South Carolina, Mississippi, and Alabama cases would come the following year. The institutional infrastructure was still being assembled.

The Justice Department’s creation deserves separate attention because it was the precondition for everything that followed. Before June 22, 1870, the Attorney General had been a single cabinet officer with a small office in the Treasury building, responsible primarily for advising the president on legal questions and arguing federal cases before the Supreme Court. Federal litigation in lower courts was handled by district attorneys reporting to the executive branch through varying and inconsistent chains of command. There was no federal investigative arm beyond the Treasury’s customs service and the postal inspectors. The Act of 1870 consolidated federal legal authority under a single department headed by the Attorney General, created the position of Solicitor General to handle the government’s Supreme Court litigation, expanded the office’s professional staff, and gave the Attorney General supervisory authority over the district attorneys. This was, in 1870, a significant administrative reform with implications that went well beyond civil rights enforcement. But the timing of the reform, in the same legislative session that produced the First Enforcement Act, was not coincidental. Congress and Grant understood that the new civil rights jurisdiction required an institutional home, and that the existing scattered structure could not handle it.

Grant’s choice of Amos Akerman as Attorney General in November 1870, replacing Ebenezer Hoar, sealed the institutional commitment. Akerman was a Georgian by adoption, born in New Hampshire in 1821, educated at Dartmouth and Princeton, who had moved to Georgia in 1842 and become a successful Elberton lawyer. He had owned slaves before the war, served briefly in the Confederate quartermaster corps, and emerged from the war as one of Georgia’s leading Republican lawyers and a delegate to the state’s 1868 constitutional convention. Grant had appointed him United States Attorney for Georgia in 1869. The Hoar resignation in June 1870, prompted by Hoar’s opposition to Grant’s Santo Domingo project, opened the Attorney General position. Grant’s selection of Akerman over more conventional candidates from the northeast was deliberate. Akerman knew the South. Akerman knew the Klan from the prosecutorial side. Akerman was, by November 1870, already known as one of the few federal officials in the former Confederacy willing to bring prosecutions that local opinion considered impossible.

Akerman moved fast. By February 1871 he had reorganized the Justice Department’s small staff to create what was effectively a civil rights division avant la lettre, with attorneys assigned specifically to the Enforcement Act cases and a coordinating system that pulled in district attorneys from across the affected states. He authorized the use of federal marshals and deputized hundreds of additional officers in the most violent counties. He worked closely with Major Lewis Merrill, the cavalry officer Grant had detailed to South Carolina with the Seventh United States Cavalry in March 1871, to coordinate military intelligence-gathering with prosecutorial preparation. The Merrill-Akerman partnership in upstate South Carolina would produce, by the autumn of 1871, the most detailed case file on Klan organization and membership ever compiled. Merrill’s reports, preserved in the Akerman papers at the University of Virginia and in the War Department records at the National Archives, included Klan oaths, organizational charts of the dens in York and Spartanburg counties, lists of named participants in specific raids, and witness statements from victims and from Klan members who had agreed to cooperate.

The Second Enforcement Act, February 28, 1871

The First Enforcement Act addressed primarily what private persons did. The Second Enforcement Act, signed by Grant on February 28, 1871, addressed what federal officers could do to prevent violations before they occurred. The act expanded the system of federal supervision of elections in any city of more than 20,000 people upon the application of two citizens, and provided for federal marshals to enforce the supervisors’ rulings. The original focus was northern urban fraud, particularly New York and Philadelphia, but the act’s reach extended to any qualifying election and the federal supervisor system would later be used in the 1872 election to monitor southern polling places where the Klan and its successors had operated in 1870. The supervisors had the power to challenge unqualified voters, observe the counting, and arrest persons who attempted to vote fraudulently or to intimidate qualified voters. The act’s provisions formed the basis of federal election supervision that would persist, intermittently, until repealed by congressional Democrats in 1894.

The political context of the Second Enforcement Act was the failure of the first to produce the deterrent effect its drafters had hoped. Through the autumn of 1870, Klan violence had not slackened. Indeed, the November 1870 elections in Mississippi, Alabama, and Georgia had seen substantial Klan-mobilized intimidation, with Black voting in certain counties falling by 70 percent or more compared to the 1868 cycle. The First Enforcement Act had been on the books, but the Justice Department had not yet built the prosecutorial infrastructure to apply it at scale, and the deterrent effect had not yet been felt. The Second Enforcement Act was, in part, an attempt to add another layer of federal presence, the visible federal supervisor at the polling place itself, as a complement to the criminal sanctions that took longer to apply.

The Meridian, Mississippi riot of March 6 through 9, 1871, falling between the second and third enforcement acts, demonstrated to congressional Republicans that even the expanded statutory framework was insufficient. The riot began with the trial of three Black men accused of inciting earlier disorder, escalated to the courtroom murder of the white Republican judge Aleck Warner, and ended with the killing of approximately thirty Black residents over four days. State and local authorities did nothing. The federal authorities had no statutory basis to act against private violence not directly connected to a federal election. The gap that Meridian exposed, between voting-rights enforcement that the 1870 acts had partially addressed and general protection against political violence that they had not, became the immediate impetus for the third and most aggressive enforcement statute.

The Ku Klux Klan Act, April 20, 1871

The Ku Klux Klan Act, formally the Civil Rights Act of 1871, signed by Grant on April 20, 1871, was the most constitutionally aggressive civil rights statute Congress would pass between Reconstruction and the Civil Rights Act of 1957. The statute had four substantive sections. Section one created civil and criminal liability for any person who, “under color of any State law,” deprived any other person of constitutional rights, an authority that would lie largely dormant until reactivated in the twentieth century as Section 1983 of the federal civil rights code. Section two extended federal criminal jurisdiction to conspiracies between two or more persons to interfere with constitutional rights, with the section-five enforcement clause of the Fourteenth Amendment as the constitutional basis. Section three authorized the president to use the militia, the army, and the navy to suppress combinations against federal law when ordinary judicial proceedings were inadequate, and section four authorized the president to suspend habeas corpus in counties or districts under such combinations, with the suspension to expire at the end of the next regular congressional session.

Sections three and four together gave Grant the legal architecture for what would become the October 17, 1871 South Carolina proclamation. The constitutional theory was that organized political violence directed against the exercise of federally protected rights constituted an insurrection against federal law in the section-five sense of the Fourteenth Amendment, and that the president’s pre-existing constitutional authority to suppress insurrection, supplemented by the explicit statutory authorization Congress was now providing, included the power to suspend habeas corpus in the affected areas. The theory was bold. The constitutional textual basis for peacetime habeas suspension was Article I, Section 9, Clause 2, which permitted suspension “when in cases of rebellion or invasion the public safety may require it,” and which Lincoln had invoked unilaterally in 1861 before Congress ratified the suspension in 1863. Whether the upstate South Carolina situation in 1871 constituted “rebellion” in the constitutional sense was contested. The Ku Klux Klan Act used the word “insurrection” deliberately to track the constitutional language while avoiding the implication that the South was, as a region, in rebellion, which would have implied that Reconstruction itself had failed.

The congressional vote on the Ku Klux Klan Act was closer than on the prior two statutes. The House passed it 93 to 74 on April 6, 1871, and the Senate passed it 36 to 13 on April 14. The closer margins reflected Liberal Republican defections and Democratic unity in opposition. Carl Schurz, who would lead the Liberal Republican defection in 1872, voted against the act on the grounds that it constituted an unconstitutional federal encroachment on state authority. James Garfield of Ohio, who would later become president, voted for it but spoke against its habeas suspension provision as constitutionally doubtful. The act’s opponents, both Democrats and Liberal Republicans, raised exactly the concerns that the Supreme Court would later validate in the Slaughterhouse Cases and Cruikshank: that the Fourteenth Amendment did not authorize Congress to federalize what were essentially state criminal jurisdictions, and that the constitutional structure required leaving private violence to state law regardless of how inadequate state law had proven in practice.

Grant’s signing message on April 20, 1871, was substantive in a way few of his presidential papers were. He explicitly invoked the recent violence in the South, named the Klan by organization, and committed the executive branch to vigorous enforcement of the act’s provisions. The message was drafted by Akerman, with editorial input from Grant himself. Its rhetorical pitch differed from Grant’s typical understated style. The president stated that “if the proper State authorities are unable to protect life, liberty, and property of citizens, the duty devolves upon the General Government to extend such protection.” This was, in 1871, a substantial constitutional claim. The traditional reading of the federal structure had been that states retained primary responsibility for criminal jurisdiction over violence against persons, and that federal authority extended only to specific federal contexts. Grant was now asserting that when states demonstrably failed to protect federally guaranteed rights, the federal executive had the duty as well as the authority to act in their place. The implications, if pressed, would have transformed the federal structure. The implications, in fact, would mostly not survive judicial review past 1883.

The Joint Select Committee and the Production of Evidence

Between April and October 1871, the work of building the evidentiary basis for what would become the prosecution campaign occurred along two parallel tracks. Akerman’s Justice Department was assembling case files for criminal prosecution. The Joint Select Committee to Inquire into the Condition of Affairs in the Late Insurrectionary States, established by congressional resolution on April 20, 1871 (the same day as the Ku Klux Klan Act), was assembling the public record. The committee, chaired by Senator John Scott of Pennsylvania, included House members and senators from both parties and conducted hearings in Washington, in the South, and through field investigators across spring and summer 1871. The committee’s final report, published in February 1872 in thirteen volumes totaling more than eight thousand pages, remains the most comprehensive contemporary documentation of the Klan that exists. The volumes contain witness testimony from victims, from Klan members, from law enforcement officers, from state officials, from federal investigators, from Black political leaders, and from white Republican officeholders, organized by state. The report includes Klan organizational documents, copies of Klan oaths, lists of named members where prosecutors had been able to identify them, and patterns of violence by county.

The committee’s work served three functions. It supplied the political record that congressional Republicans needed to justify continued enforcement appropriations. It supplied the prosecutorial record that Justice Department attorneys would use in court. And it supplied the historical record that subsequent generations would consult. The 1872 report has been the principal documentary source for almost every serious scholarly treatment of the Klan since, including Allen Trelease’s White Terror, Lou Falkner Williams’s The Great South Carolina Ku Klux Klan Trials, and Charles Lane’s The Day Freedom Died. Foner draws extensively on the committee record in Reconstruction. Chernow uses it in Grant. The richness of the documentary base is part of why the early-1870s Klan is more thoroughly documented than many of its twentieth-century revivals, which operated in different media environments and without the kind of systematic federal investigation that the Joint Select Committee conducted.

The South Carolina hearings, conducted by a subcommittee in Yorkville and other upstate towns in July 1871, produced testimony that directly shaped the October proclamation. Witnesses described night-time raids by Klansmen in groups of fifty to one hundred, the systematic targeting of Black families who had refused to leave their farms or stop voting, the assassination of Republican election officials, and the inability of the local courts to bring indictments because grand juries were dominated by Klan sympathizers. Major Merrill, testifying before the subcommittee on July 27, 1871, presented his intelligence findings on the Klan’s organization in York County and identified by name approximately one hundred and ninety-five members of the local dens whom he believed could be prosecuted. The Yorkville testimony, combined with Akerman’s own assessment after a personal visit to the upcountry in September 1871, formed the immediate evidentiary basis for Grant’s October proclamation.

The October 17, 1871 Proclamation

The proclamation itself was carefully drafted. Grant had issued a preliminary warning on October 12, declaring that combinations in certain counties of South Carolina were resisting federal law and warning the resisters to disperse within five days. When the deadline expired without compliance, Grant signed the formal proclamation suspending habeas corpus on October 17. The proclamation named the nine counties (York, Spartanburg, Union, Marion, Lancaster, Chester, Chesterfield, Newberry, and Fairfield) and invoked the Ku Klux Klan Act’s section four authority. Federal troops under Merrill, supplemented by deputized marshals, began arrests within forty-eight hours. By the first week of November, approximately five hundred Klan suspects had been arrested in York County alone. By the end of December, the total across the nine counties had exceeded one thousand. Most arrested individuals were held briefly for questioning and released; those against whom Merrill and Akerman believed they had prosecutable cases were detained for federal grand juries that convened in Columbia under Judge Hugh Lennox Bond.

The judicial proceedings that followed, generally called the Ku Klux Trials, were held in the United States Circuit Court for the District of South Carolina in Columbia between November 1871 and the spring of 1872. The principal prosecutors were Daniel Corbin, the United States Attorney for South Carolina, and David T. Corbin, his nephew and assistant, with Akerman himself present for portions of the proceedings. The defense was led by Reverdy Johnson, a former United States Attorney General under Zachary Taylor and a leading constitutional lawyer; by Henry Stanbery, who had been Andrew Johnson’s principal defender during impeachment; and by Senator Francis Blair, a Democrat. The constitutional questions presented in the trials, particularly the question of whether the Fourteenth Amendment authorized federal criminal jurisdiction over private violence and the question of whether the habeas suspension was lawful, were never fully resolved at the circuit court level. The court, presided over by Judge Bond and Justice William Strong (riding circuit), was divided on the constitutional questions, and the cases that produced split rulings would have gone to the Supreme Court had the prosecution chosen to push them.

Of the approximately two hundred and twenty cases brought to indictment in South Carolina by spring 1872, somewhat fewer than one hundred reached actual trial. The remainder resulted in guilty pleas, often after plea negotiations in which lower-level Klan members received reduced sentences in exchange for cooperation against higher-ranking organizers, or were dismissed when prosecutorial priorities shifted to other targets. The convictions, where they occurred, produced prison sentences ranging from a few months to several years, with the most severe sentences going to organizers and to perpetrators of murder or particularly aggravated assault. Five Klansmen convicted in South Carolina were sent to the Albany Penitentiary in New York for terms of up to five years. Others served sentences at federal facilities in Auburn and elsewhere.

The South Carolina prosecutions were the centerpiece, but they were not the only theater. In Mississippi, federal grand juries returned 678 indictments under the Enforcement Acts between 1871 and 1872. Convictions, however, were proportionately lower because Mississippi’s white Republican prosecutors and the federal district attorneys could not always sustain cases in the face of intimidated witnesses and hostile juries. In North Carolina, where Governor William Holden’s earlier failed effort to use state militias against the Klan had ended in Holden’s impeachment by an unsympathetic legislature in 1871, federal prosecutions under the new acts produced approximately fifty convictions. In Alabama and Georgia, despite the dense Klan activity earlier documented, federal prosecutions produced fewer than one hundred convictions combined, partly because Akerman’s successor as Attorney General would prove less willing to commit federal resources to these states.

The total picture, drawing on the consolidated figures developed by Lou Falkner Williams, Robert J. Kaczorowski (The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866 to 1876), and Stephen Cresswell (Mormons and Cowboys, Moonshiners and Klansmen: Federal Law Enforcement in the South and West, 1870 to 1893), is that federal authorities brought somewhere between three thousand and three thousand five hundred indictments under the Enforcement Acts between 1871 and 1874, with the heaviest concentration in 1871 and 1872. Convictions totaled approximately six hundred and fifty. The conviction rate, roughly 20 percent, was lower than typical contemporary federal criminal conviction rates because of the specific evidentiary difficulties of prosecuting offenses where witnesses were under continued threat. But the deterrent effect was substantial. By mid-1872, the Klan as an organized network had effectively ceased operations in the upstate South Carolina counties where the October 1871 proclamation had been targeted, and Klan activity had substantially declined across most of the Deep South.

Akerman’s Removal, December 1871

Akerman’s removal as Attorney General on December 13, 1871, just under two months after the South Carolina proclamation, is one of the most consequential personnel decisions in Reconstruction-era civil rights enforcement. The official record provides little explanation. Grant’s letter to Akerman of December 12, requesting his resignation, cited “good and sufficient reasons” without specifying them. Akerman’s correspondence with friends and family in the months after his removal expressed both regret and a sense of betrayal, but he did not publicly contest Grant’s decision and accepted reassignment as a federal judge in Florida, which he in fact declined to undertake before returning to private practice in Georgia.

The reasons, reconstructed from cabinet correspondence, contemporary newspaper reporting, and the recollections of those involved, were a combination of factors. Akerman had clashed with the Pacific Railroad lobby over federal land grant litigation, in which he had taken positions adverse to the railroad’s interests. Collis P. Huntington of the Central Pacific and Thomas A. Scott of the Pennsylvania, who would later be central to the Compromise of 1877, lobbied Grant directly for Akerman’s removal. Hamilton Fish, Grant’s Secretary of State and the cabinet officer closest to Grant personally, supported the change for reasons that Fish recorded in his diary as Akerman’s “monomania” about the Klan and the railroad litigation, by which Fish meant Akerman’s tendency to subordinate other administration priorities to the civil rights enforcement campaign. Some historians, including William McFeely, have suggested that Akerman’s prosecutorial intensity had become politically inconvenient to Grant by late 1871, with the 1872 reelection campaign approaching and the Liberal Republican challenge emerging.

The replacement, George Williams of Oregon, was a less effective Attorney General by almost any measure. Williams was personally less committed to civil rights enforcement than Akerman had been. He was administratively less competent (the Justice Department’s professional infrastructure would degrade under his tenure). And he was politically more interested in his own ambitions, which would lead Grant to nominate him as Chief Justice of the United States in 1873 in a nomination that would be withdrawn after the Senate raised concerns about Williams’s expense accounts and his wife’s lobbying for the appointment. Under Williams, federal civil rights prosecutions did not stop. The South Carolina cases continued through 1872 and into 1873. But the centralized commitment that Akerman had brought, the personal involvement of the Attorney General in case strategy and in coordinating with field offices, was lost. The decline in prosecutorial intensity that becomes visible in the 1873 numbers and accelerates through 1874 begins with the Akerman removal, even if its full effects took longer to manifest.

The Akerman removal is one of the moments where Grant’s choices become more difficult to defend. The 1870 and 1871 commitment to enforcement was bold. The October 1871 proclamation was bolder. The December 1871 removal of the man who had architected both was a step back that Grant chose to take just as the enforcement infrastructure was producing its most concentrated results. The reasons for the removal are explicable in terms of cabinet politics, lobbying pressure, and Grant’s interpersonal preferences. They do not, however, explain why a president who had committed himself publicly to vigorous enforcement six months earlier would weaken the institutional commitment to that enforcement just as it was succeeding. The decision to remove Akerman is, in retrospect, the first significant moment of retreat in what would become a much larger retreat over the following years.

The 1872 Election and the Amnesty Act

The 1872 reelection campaign forms the political context within which the prosecutorial momentum of 1871 began to fade. Grant faced two challenges. The first was the Liberal Republican defection, led by Carl Schurz, Charles Francis Adams, Lyman Trumbull, and several other prominent Republicans who had broken with the administration over a combination of issues including civil service reform, the Santo Domingo annexation, the tariff, and what the Liberals considered excessive federal involvement in southern affairs. The Liberals held their own convention in Cincinnati in May 1872 and nominated Horace Greeley, the eccentric editor of the New York Tribune, for president. The Democratic Party, lacking better options, also nominated Greeley at its July convention, producing the strange spectacle of a longtime abolitionist editor running as the Democratic standard-bearer. Greeley’s platform endorsed universal amnesty for ex-Confederates and a substantial scaling back of federal involvement in the South.

The second challenge was internal to the Republican Party. Even Republicans who supported Grant’s reelection were divided on how vigorously to defend the enforcement campaign during the campaign itself. Senator Lyman Trumbull’s bill providing for a general amnesty restoring political rights to most ex-Confederates had been pending since the 1870 session. In May 1872, with the election six months away, Congress passed and Grant signed the Amnesty Act, which restored voting rights and the right to hold office to all but the most senior Confederate civilian and military leaders, perhaps five hundred individuals out of the approximately one hundred and fifty thousand who had been disqualified by the Fourteenth Amendment. The Amnesty Act was, in political terms, an exchange. Republicans had agreed to amnesty for ex-Confederates in exchange for Democratic and Liberal Republican acquiescence in continued voting-rights enforcement. The exchange had been intended to consolidate the Reconstruction settlement. In practice, the amnesty significantly weakened the political basis for continued enforcement because it restored to political participation the very class of southern leaders most likely to oppose Reconstruction and to encourage or tolerate the violence that the Enforcement Acts targeted.

Grant won the 1872 election decisively, carrying thirty-one of thirty-seven states and 56 percent of the popular vote to Greeley’s 44 percent. Greeley, exhausted by the campaign and devastated by his wife’s death in late October, died on November 29, 1872, before the Electoral College had even met to formally record the vote. The Republican coalition held. But the structural conditions for continued enforcement were degrading. The Amnesty Act had restored the political class that opposed Reconstruction. The Liberal Republican defection, though defeated, had drawn off significant intellectual and journalistic support for the enforcement campaign. And the panic that was about to overtake the American economy would, within ten months, dramatically reorder federal priorities.

The Panic of 1873 and the Slaughterhouse Cases

The Panic of 1873 began with the September 18 failure of Jay Cooke and Company, the Philadelphia investment bank that had financed the Northern Pacific Railroad and that had been one of the principal underwriters of Union war debt during the Civil War. The failure triggered a cascade. The New York Stock Exchange suspended trading on September 20 for the first time in its history. Banks across the country called in loans, businesses failed, unemployment in the industrial cities of the Northeast reached levels not seen since the late 1830s. The depression that followed would last six years and would fundamentally reorder American political priorities.

The connection between the panic and the retreat from Reconstruction was both direct and indirect. Directly, the panic forced federal budget cuts that constrained the resources available for civil rights enforcement. The army was reduced from approximately 30,000 to 25,000 men during the depression years, with cuts falling disproportionately on the units assigned to the South. The Justice Department’s appropriations for Enforcement Act prosecutions were reduced. Federal marshals were laid off. Witness protection budgets shrank. The infrastructure that Akerman had built in 1870 and 1871 began to deteriorate not through any single policy decision but through the accumulated effect of small fiscal cuts.

Indirectly, the panic shifted northern political attention away from the South. Newspaper coverage of southern violence declined as economic news dominated front pages. Congressional debate over enforcement appropriations grew shorter and less heated. Northern Republican voters who had been willing to support continued federal involvement in 1872 became less willing in 1874 when their own economic circumstances had deteriorated. The 1874 midterm elections, conducted in the depths of the depression, produced a Democratic House for the first time since the Civil War, with Republicans losing 96 seats. The new House majority would dramatically curtail enforcement appropriations and would launch investigations of administration corruption that further damaged the political coalition supporting Reconstruction.

The Slaughterhouse Cases, decided by the Supreme Court on April 14, 1873, provided the constitutional context for what was already happening politically. The case itself concerned a Louisiana statute granting a slaughterhouse monopoly to a single New Orleans corporation, with butchers excluded from the monopoly arguing that the statute violated their Fourteenth Amendment privileges and immunities, due process, and equal protection rights. The case had nothing directly to do with civil rights enforcement against the Klan. But the Court’s 5 to 4 decision, written by Justice Samuel Miller, dramatically narrowed the federal protection that the Fourteenth Amendment had been understood to provide. Miller’s opinion held that the Fourteenth Amendment’s privileges and immunities clause protected only a narrow category of federal rights (the right to travel between states, the right to petition Congress, the right to access federal courts) and not the broad bundle of civil rights that congressional Republicans had thought the amendment would federalize. The opinion left most civil rights to state protection, which was precisely where they had been before the war and precisely where the Klan operated without effective restraint.

The Slaughterhouse decision did not directly invalidate the Enforcement Acts. The acts continued to operate, and prosecutions continued to be brought, after April 1873. But the decision signaled that the Court was unwilling to support the broad constitutional theory on which the acts rested, and it foreshadowed later decisions that would more directly gut civil rights enforcement. United States v. Cruikshank, decided March 27, 1876, would specifically invalidate the federal indictments brought against the perpetrators of the 1873 Colfax massacre in Louisiana, holding that the Fourteenth Amendment did not authorize federal jurisdiction over private violence that was not specifically motivated by racial intent in a narrow technical sense. United States v. Reese, decided the same day, would invalidate portions of the Enforcement Acts dealing with election officials. The Civil Rights Cases of 1883 would invalidate the public accommodations provisions of the 1875 Civil Rights Act. The constitutional architecture that the 1870 and 1871 acts had constructed would be dismantled by the Supreme Court over the following decade.

The Colfax Massacre and Federal Failure

The Colfax massacre of April 13, 1873, deserves separate attention because it represents the moment at which the limits of federal enforcement became most starkly visible. On Easter Sunday 1873, a force of approximately three hundred white Democrats, organized as paramilitary units, attacked the Grant Parish courthouse in Colfax, Louisiana, where Black Republican militia members had gathered to defend the local Republican government against an attempted coup. The defenders, perhaps one hundred and fifty men, surrendered after several hours of fighting in which they were outgunned by Democratic forces equipped with a small cannon. The surrender did not end the violence. After the surrender, Democratic forces killed somewhere between 62 and 153 Black defenders, with most estimates settling in the range of 80 to 100 deaths, including a significant number who were murdered after being taken prisoner and at least some who were killed the morning after the surrender. The exact death toll is contested because the Democratic forces buried many of the victims in mass graves before federal investigators arrived, and because the historical record was deliberately obscured by participants who had reason to minimize the killing.

The Colfax massacre was the deadliest single act of Reconstruction-era racial violence. It exceeded the death toll of any single Klan incident, exceeded the Camilla and Opelousas massacres, and approached the death toll of the Memphis riots of 1866. The federal response was substantial but ultimately defeated. Attorney General Williams, Akerman’s successor, did authorize prosecutions under the Enforcement Acts. Federal indictments were brought against ninety-eight individuals identified as participants. The trial of nine defendants in the United States Circuit Court for the District of Louisiana, held in 1874, produced convictions of three defendants for conspiracy under the Enforcement Acts and acquittals of the rest. The three convicted defendants appealed. Their appeals reached the Supreme Court as United States v. Cruikshank, and the Court’s March 1876 decision invalidated the convictions on the grounds that the federal indictments had not specifically alleged that the violence was racially motivated in a way that would bring it within the Fourteenth Amendment’s narrowly construed scope.

The Colfax case illustrated everything that was becoming wrong with the enforcement regime by the mid-1870s. State and local authorities had been complicit with the attackers, not opposed to them. Federal investigators had to work without local cooperation and against active obstruction. Witnesses were intimidated. Jury composition in the federal districts was inconsistent and increasingly difficult to control as Liberal Republicans and Democrats gained influence in state and federal courts. The Supreme Court, instead of supporting the constitutional theory on which the prosecutions rested, was actively undermining it. The federal political will to override these obstacles, which had been present in 1870 and 1871 under Akerman, was no longer reliably present in 1873 and 1874 under Williams and his successor Edwards Pierrepont. The Colfax prosecutions were brought, but they were not brought with the institutional intensity that Akerman would have brought, and they did not survive the constitutional challenges that earlier prosecutions might have. The pattern would recur, in different forms, through the next three years of the Grant administration.

The 1875 Civil Rights Act

The 1875 Civil Rights Act, signed by Grant on March 1, 1875, was the last major civil rights statute of the Reconstruction era. The act prohibited racial discrimination in public accommodations (inns, public conveyances, theaters, and other places of public amusement) and in jury service. The statute was the legislative legacy of Charles Sumner, who had introduced versions of the bill repeatedly since 1870 and whose final illness in March 1874 had prompted his colleagues to commit to passing the bill in his memory. Sumner’s last reported words, spoken to George Frisbie Hoar at his bedside, had been about the bill: “You must take care of the civil rights bill, my bill, the civil rights bill, do not let it fail.”

The act passed in the lame-duck session of the 43rd Congress, after the Democratic landslide in the November 1874 elections but before the new Congress had convened. Republicans, knowing their majority would not return, pushed the bill through in February 1875 over significant intra-party reservations. The bill that passed was weaker than Sumner had wanted, having lost its public schools provision in the final negotiations. The enforcement provisions were modest: $500 fines and up to a year in prison for violations, enforceable through federal civil and criminal proceedings. The act was, in many ways, more symbolic than substantive. The political coalition that could enforce it no longer existed by March 1875. The Supreme Court would invalidate the public accommodations provisions in the Civil Rights Cases of 1883 on grounds parallel to its Slaughterhouse and Cruikshank reasoning, holding that the Fourteenth Amendment authorized congressional action only against state discrimination and not against private discrimination.

The 1875 act’s passage was, nonetheless, a significant moment. It represented the final assertion of the Reconstruction-era constitutional theory before the political coalition supporting that theory was definitively broken by the 1876 election and its aftermath. It was the legislative bookend to the 1870 First Enforcement Act, framing five years of federal civil rights legislation that constituted, until the 1960s, the most expansive federal civil rights regime in American history. And it was a measure of how far the political consensus had eroded in five years. The 1870 First Enforcement Act had passed by 133 to 58 in the House and 48 to 11 in the Senate. The 1875 Civil Rights Act passed by 162 to 99 in the House and 38 to 26 in the Senate. The margins were smaller. The political coalition was narrower. And the new Congress, which would convene in December 1875, would contain a Democratic House majority that would block any further civil rights legislation for the remainder of the century.

The Complication: Was Federal Enforcement Always Doomed?

The strongest critique of the Grant-era enforcement campaign is that it could never have succeeded, that the structural conditions of the post-war South made sustained federal civil rights enforcement effectively impossible regardless of presidential commitment or congressional appropriation. This critique has been advanced in various forms by David Blight, William Gillette (Retreat from Reconstruction, 1869 to 1879), Heather Cox Richardson (West from Appomattox), and most pointedly by Nicholas Lemann in Redemption: The Last Battle of the Civil War. The argument deserves careful engagement, because the conclusion this article reaches depends on how it is answered.

The structural-failure argument has several variants. The first emphasizes the geographic and demographic conditions of federal enforcement. The army units assigned to Reconstruction duty totaled perhaps 6,000 to 9,000 men at any given time, scattered across eleven states with a combined area of more than 750,000 square miles and a combined population of more than 9 million people. The Klan and its successor organizations could mobilize, on short notice, far larger forces in any given county than the army could realistically concentrate. Federal enforcement depended on intelligence-gathering that local officers could not effectively conduct without local cooperation, which was not forthcoming. Witness protection at the level required for sustained prosecutions was beyond the capacity of the federal government as it then existed. The geographic and demographic mathematics, the argument runs, made enforcement at the scale needed to suppress sustained insurgency structurally impossible.

The second variant emphasizes the federal-state constitutional structure. American government was, in 1870, much more decentralized than it would become in the twentieth century. State courts had primary criminal jurisdiction over violence against persons. State militias were the primary armed force most available for daily law enforcement. The federal executive branch was small, the federal court system was thin (a single circuit judge for vast geographic areas, supplemented only intermittently by Supreme Court justices riding circuit), and the federal administrative state did not yet exist in any modern sense. The Enforcement Acts asserted federal authority that the existing federal infrastructure was institutionally unprepared to exercise at scale. The structural conditions for sustained federal enforcement, the argument goes, would not be in place until the twentieth-century administrative state developed under Franklin Roosevelt and his successors.

The third variant emphasizes white supremacy as a sustained ideological and material commitment, not just of southern white populations but of substantial portions of northern white populations as well. The withdrawal of northern political support for Reconstruction reflected, on this view, not just panic-induced exhaustion but a deeper consensus among white Americans that Black political participation was undesirable. The 1872 Liberal Republican movement, the 1874 Democratic landslide, the 1876 Compromise, all expressed this consensus. Federal enforcement, the argument runs, could not have been sustained against the underlying ideological commitments of white Americans on both sides of the Mason-Dixon line. The political abandonment of Reconstruction was not contingent but structural.

These arguments have force. They are not, however, conclusive. Foner’s response, developed across Reconstruction and in subsequent essays, is that the structural conditions were difficult but not determinative, and that what happened was contingent on specific political choices that could have gone differently. The army units in the South were small, but they were sufficient to defeat the Klan in 1871 when used with intelligence and concentration. The federal court system was thin, but it produced six hundred convictions when the Justice Department was committed to the work. The federal administrative state was undeveloped, but the Justice Department’s 1870 creation showed that it could be developed when political will existed. The northern political coalition was fragile, but it sustained Reconstruction for twelve years and could have sustained it for twelve more if Republicans had not made specific choices to retreat. Blight’s response, more pessimistic than Foner’s, is that the underlying ideological conditions made sustained enforcement impossible, but Blight acknowledges that the 1871 enforcement campaign was substantively effective in its own narrow theater and that the question is whether the enforcement could have been extended and sustained.

The verdict this article reaches, having considered the structural arguments, is that they explain why sustained enforcement would have been difficult but do not establish that it was impossible. The 1871 South Carolina campaign showed what was possible when federal will, military force, prosecutorial competence, and political coalition aligned. The 1873 through 1876 collapse showed what happened when those alignments came apart. The collapse was driven by specific political and economic choices, not by abstract structural necessity. The Panic of 1873 was not inevitable in its political effects, the Akerman removal was Grant’s choice rather than forced upon him, the Liberal Republican defection reflected ideological and personal commitments of specific Republicans rather than inexorable political forces, and the Supreme Court decisions of 1873 and 1876 reflected the choices of specific justices applying their own constitutional theories rather than necessary readings of the Fourteenth Amendment. None of these counterfactuals are easy. Each requires arguing against specific historical contingencies. But they are arguments about historical contingency, not arguments against structural impossibility. The Lemann argument that redemption succeeded because northerners gave up is, in important respects, a moral judgment dressed as a structural one. It says correctly that northerners did give up. It does not establish that they had to.

Verdict: The Boldest Civil Rights Campaign Before the 1960s

The October 17, 1871 proclamation suspending habeas corpus in nine South Carolina counties was the boldest peacetime assertion of federal executive power for civil rights ends in American history before the Eisenhower deployment to Little Rock in 1957. The proclamation was constitutionally aggressive. It was substantively necessary, given the documented inability of state authorities to control political violence in the affected counties. It was militarily and prosecutorially effective, producing the defeat of the Klan as an organized network in the upstate Carolina region and contributing to its substantial decline across the Deep South. And it rested on a legal architecture (the three Enforcement Acts and the Justice Department reorganization) that constituted, in legislative ambition, the most comprehensive federal civil rights regime that would exist between Reconstruction and the Civil Rights Act of 1964.

The proclamation’s value as precedent should be assessed against what came before and what came after. Before October 1871, no president had used peacetime habeas suspension to enforce civil rights against private political violence. Lincoln’s habeas suspensions of 1861 and after had been wartime measures aimed at internal subversion during an active rebellion. Andrew Johnson’s failure of 1866 had been a failure of vetoes against Congress, not of executive enforcement. The Enforcement Acts gave Grant tools no prior president had possessed, and Grant used them at a scale and intensity that constituted a new pattern of executive action. After October 1871, the federal executive would not again use these specific tools (habeas suspension for civil rights, mass federal prosecution of organized racial violence) until the second half of the twentieth century. The eighty-six-year gap between Grant’s South Carolina proclamation and Eisenhower’s Little Rock deployment is the longest gap in federal civil rights enforcement in American history.

What does Grant deserve credit for, and where does the credit reach its limits? He deserves credit for committing executive authority to enforcement when his administration’s institutional inclinations and his own initial caution would have argued for restraint. He deserves credit for selecting Akerman over more conventional candidates and giving him latitude to build the enforcement infrastructure. He deserves credit for signing the October 1871 proclamation knowing the constitutional and political risks. The credit reaches its limit at the December 1871 Akerman removal. From that decision forward, Grant’s commitment to enforcement, while not absent, was more intermittent. The administration’s choices through 1872, 1873, 1874, 1875, and 1876 cumulatively dismantled what the 1870 and 1871 architecture had built, partly through external pressure and partly through Grant’s own willingness to subordinate enforcement to other administration priorities. The retreat was Grant’s as well as the Republican Party’s and the northern public’s.

The deepest claim this article advances is that the 1870 through 1872 enforcement campaign demonstrates that federal civil rights enforcement was institutionally possible in the nineteenth century, and that what followed was therefore a chosen abandonment rather than a structural necessity. This claim is contested. It is, however, the claim the evidence best supports. The Klan was defeated in 1871 and 1872 by federal action. The political coalition that sustained that action existed and could have continued to exist if specific choices had been made differently. The constitutional theory underpinning the action was viable in 1870 and 1871, and was abandoned by the Supreme Court not because it was untenable but because the Court was constituted by justices who chose to read the Fourteenth Amendment narrowly. The infrastructure that Akerman built was operational in 1871 and was allowed to deteriorate by choices Grant and his successors made.

Legacy: The Institutional Infrastructure That Outlasted the Retreat

The Reconstruction-era enforcement campaign collapsed by 1877. The institutional infrastructure that the campaign created largely did not. This distinction is one of the more important and underappreciated patterns in American legal-institutional history, and it threads directly into the house thesis that the modern presidency was forged in crises whose institutional residues outlived the conditions that produced them. The Department of Justice, created in June 1870 to provide a unified federal legal authority capable of executing the Enforcement Acts, did not disappear when the prosecutorial campaign declined. It became, instead, a permanent feature of the federal executive, gradually expanding its non-civil-rights functions through the late nineteenth and early twentieth centuries (antitrust enforcement under Theodore Roosevelt and Taft, immigration enforcement under Wilson, federal criminal jurisdiction expansion under Hoover and Franklin Roosevelt) while retaining the civil rights jurisdiction that had been its founding purpose.

The Justice Department’s Civil Rights Section, formally established in 1939 under Attorney General Frank Murphy, was institutionally a direct descendant of the Akerman-era civil rights work. The section’s early prosecutions, brought under the surviving sections of the 1870 and 1871 Enforcement Acts that the Supreme Court had not invalidated, demonstrated that the legal architecture Akerman had built was still operative even after seven decades of dormancy. The Civil Rights Act of 1957, which created the Civil Rights Division of the Justice Department as a successor to the Civil Rights Section, explicitly invoked the surviving Enforcement Act provisions and added new authorities that filled gaps the Supreme Court had created in Cruikshank and Reese. The Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968 collectively rebuilt the federal civil rights enforcement regime on a foundation that the 1870 and 1871 acts had originally laid.

Section 1983 of the federal civil rights code (42 U.S.C. § 1983), the statute that today provides the primary legal vehicle for civil rights claims against state and local officials, is a direct survival of section one of the Ku Klux Klan Act of 1871. The section lay largely dormant from the 1880s through the 1960s but was reactivated by the Supreme Court’s 1961 decision in Monroe v. Pape, which held that section 1983 created a federal cause of action against state and local officers who violated constitutional rights regardless of whether their conduct was authorized by state law. From Monroe forward, section 1983 became one of the most heavily litigated federal statutes, the principal vehicle for police misconduct litigation, prison conditions litigation, and other constitutional claims against state actors. The Ku Klux Klan Act’s section one survived the post-Reconstruction retreat and was waiting, like a buried seed, for the political and legal conditions that would let it grow again.

Eisenhower’s deployment of the 101st Airborne to Little Rock on September 24, 1957 to enforce the Brown v. Board desegregation order was, in institutional terms, the reactivation of the federal civil rights enforcement infrastructure that Grant had built and that had been dormant since 1877. The legal authority Eisenhower invoked, the federal duty to enforce federal court orders against state resistance, traced through the Enforcement Acts back to the Reconstruction-era constitutional theory that the federal government had the duty as well as the authority to act when states demonstrably failed to protect federally guaranteed rights. The eighty-year gap between Grant’s 1871 South Carolina proclamation and Eisenhower’s 1957 Little Rock deployment was not, on closer examination, a gap in legal authority. The authority remained on the books. The gap was a gap in political will. When political will returned in the mid-twentieth century, the institutional infrastructure was, more or less, still there to be used.

The Compromise of 1877, the deal that resolved the disputed 1876 election by giving Republican Rutherford Hayes the presidency in exchange for the withdrawal of remaining federal troops from the South, is the conventional endpoint of Reconstruction. The decisions and dynamics that produced the Compromise are taken up separately in this series’s treatment of Hayes’s choice to formally end the federal Reconstruction project in March and April 1877. The relationship between Grant’s 1870 through 1872 enforcement campaign and Hayes’s 1877 withdrawal is one of cumulative retreat. The October 1871 proclamation was the peak. The Akerman removal of December 1871 was the first significant step back. The Slaughterhouse Cases of April 1873 were the constitutional foreshadowing. The Panic of 1873 and the 1874 midterms broke the political coalition. The Cruikshank decision of March 1876 invalidated the constitutional theory. The Compromise of 1877 formally ended what was already substantively ended. The pattern of retreat is continuous, with Grant’s choices contributing to it as much as the choices of his successors and his Democratic and Liberal Republican opponents.

Grant’s ranking trajectory in scholarly surveys, traced elsewhere in this series, reflects historians’ gradual recognition over the past fifty years of what the 1870 through 1872 enforcement campaign represented. For most of the twentieth century, the Dunning School historiography that emerged from Columbia University under William Archibald Dunning had presented Reconstruction as a tragic federal overreach and Grant as a corrupt and incompetent occupant of the presidency, with his civil rights enforcement either ignored or treated as misguided. The Lost Cause cultural narrative that emerged from the same period, propagated through D.W. Griffith’s 1915 film Birth of a Nation, through the proliferation of Confederate monuments between 1900 and 1930, and through the popular histories of Claude Bowers and others, similarly minimized or vilified the enforcement campaign. The historiographic rehabilitation began with the Foner generation in the 1970s and 1980s, accelerated with Chernow’s 2017 biography, and has produced the steady upward movement in Grant’s ranking from the bottom decile of presidents to the middle quartile, with continued upward pressure as the underlying scholarly reassessment continues.

The house thesis of this series, that the modern presidency was forged in crises and that emergency powers created in those crises outlived the emergencies, finds in the Grant-era enforcement campaign one of its most instructive cases. The First, Second, and Third Enforcement Acts, the Justice Department’s creation, the October 1871 proclamation, and the broader prosecutorial apparatus were emergency measures justified by the documented crisis of organized political violence in the post-war South. The emergency conditions changed (the Klan was defeated, the political coalition fractured, the Court retreated), but the institutional infrastructure mostly persisted, lying dormant for decades and then being reactivated by later presidents and Congresses under different political conditions. The pattern of executive-power retention across changes in political conditions, central to the house thesis, operates in this case as institutional retention more than as raw power retention. The Justice Department that Akerman built in 1870 is the direct institutional ancestor of the Civil Rights Division that John F. Kennedy and Robert Kennedy used to enforce desegregation in 1962 and 1963, and the executive infrastructure that Lyndon Johnson used to enforce the Voting Rights Act in 1965. The Reconstruction-era ratchet was not, in this case, a one-directional expansion of presidential power. It was the creation of an institutional capacity that subsequent presidents could choose to use or not use, depending on political conditions, but that they could not undo and that waited, when they did not use it, for political conditions to change.

The verdict that Grant’s 1870 through 1872 enforcement campaign was the boldest peacetime federal civil rights effort before the 1960s rests on a comparison with what came before and what came after. Before Grant, no president had wielded federal authority against organized racial violence at comparable scale. After Grant, no president would do so again until Eisenhower at Little Rock and Kennedy at Ole Miss and the University of Alabama. The eight decades between are the longest dormancy in the federal civil rights enforcement record. Whether the dormancy was inevitable or contingent is the deepest historiographic question the period raises. The evidence developed in this article supports the contingency view. The dormancy was the product of specific political and constitutional choices, made by specific presidents, courts, congressional majorities, and intellectual movements, each of which could have chosen differently. The Reconstruction settlement that emerged by 1877 was not the only possible outcome of the 1865 emancipation. The settlement was made, and could have been made differently, and the difference would have changed the trajectory of American constitutional development through the next century.

Frequently Asked Questions

Q: What were the Enforcement Acts of 1870 and 1871?

The Enforcement Acts were three federal statutes passed between May 1870 and April 1871 to provide criminal and civil enforcement mechanisms for the rights guaranteed by the Fourteenth and Fifteenth Amendments. The First Enforcement Act of May 31, 1870, criminalized interference with voting on racial grounds and extended federal criminal jurisdiction to conspiracies that interfered with federally protected rights. The Second Enforcement Act of February 28, 1871, established federal supervision of elections in cities of more than 20,000 people and provided federal marshals to enforce the supervisors’ rulings. The Ku Klux Klan Act of April 20, 1871, formally the Third Enforcement Act, created federal civil and criminal liability for state-action and private conspiracies against constitutional rights, and authorized the president to use military force and suspend habeas corpus in counties or districts where ordinary judicial proceedings had become inadequate. Together the acts represented the most comprehensive federal civil rights legislation that would exist until the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Q: Why did Grant suspend habeas corpus in South Carolina in October 1871?

Grant suspended habeas corpus in nine counties of upstate South Carolina (York, Spartanburg, Union, Marion, Lancaster, Chester, Chesterfield, Newberry, and Fairfield) under the Ku Klux Klan Act because federal investigators, principally Major Lewis Merrill of the Seventh Cavalry and Attorney General Amos Akerman, had concluded that the Klan in those counties had become a paramilitary insurgency that ordinary state and federal judicial processes could not suppress. The intelligence Merrill had developed identified hundreds of Klan members by name, documented the organizational structure of the local dens, and demonstrated that grand juries dominated by Klan sympathizers had refused to indict suspects in any of dozens of murders and assaults committed in the preceding eighteen months. The proclamation, issued on October 17, 1871, after Grant had given the resisters five days’ warning beginning October 12, allowed federal troops to arrest suspected Klan members without warrant and to hold them without bail pending federal grand jury proceedings. The constitutional authority rested on the Ku Klux Klan Act’s section four, which authorized the president to suspend habeas corpus in areas where the section three power to use military force had been invoked. The suspension was the only peacetime habeas suspension by a federal executive in the nineteenth century, and one of only a handful of peacetime suspensions in American history.

Q: How many Klan members did Grant’s administration prosecute?

Federal authorities under Grant brought somewhere between 3,000 and 3,500 indictments under the Enforcement Acts between 1871 and 1874, with the heaviest concentration in 1871 and 1872. Convictions totaled approximately 600 to 650. The conviction rate, roughly 20 percent, was lower than typical federal criminal conviction rates of the period because of specific evidentiary difficulties: witnesses under threat, jury composition problems, the geographic dispersion of the offenses across vast and poorly served federal districts. The most concentrated prosecutions occurred in South Carolina, where the October 1871 proclamation produced approximately 220 indictments and roughly 100 convictions, and in Mississippi, where federal grand juries returned 678 indictments between 1871 and 1872. Lou Falkner Williams and Stephen Cresswell have compiled the consolidated figures from federal district court records, and their numbers are the standard scholarly source. The deterrent effect of the prosecutions, particularly in upstate South Carolina, was substantial: the Klan as an organized network had effectively ceased operations in the proclamation counties by mid-1872, and Klan activity had declined significantly across the Deep South.

Q: Was the October 1871 habeas suspension constitutional?

The constitutionality of the October 1871 habeas suspension was never definitively tested by the Supreme Court because the Grant administration chose not to push the constitutional questions to that level, and because the cases that might have produced a Supreme Court ruling on the suspension itself were resolved at the circuit court level or dropped on prosecutorial discretion grounds. The constitutional theory underlying the suspension was that organized political violence aimed at preventing the exercise of federally protected rights constituted an “insurrection” within the meaning of Article I, Section 9, Clause 2 of the Constitution, which permitted habeas suspension when “in cases of rebellion or invasion the public safety may require it.” The Ku Klux Klan Act of April 1871 had explicitly authorized the president to invoke this authority. Whether the upstate South Carolina situation in October 1871 qualified as a “rebellion” in the constitutional sense was contested by contemporary critics including Senator Schurz. The cleanest assessment is that the suspension was within the range of constitutionally defensible peacetime applications of habeas suspension, given the section-five enforcement authority of the Fourteenth Amendment and the documented inability of state authorities to control the violence, but that the constitutional authority would have been at risk before a Supreme Court that, as the Slaughterhouse Cases would soon demonstrate, was unwilling to support broad readings of Reconstruction-era federal authority.

Q: Who was Amos Akerman and why was he important?

Amos Akerman was Grant’s second Attorney General, serving from November 1870 to December 1871. Born in New Hampshire in 1821, educated at Dartmouth and Princeton, he had moved to Georgia in 1842 and built a successful law practice in Elberton. He had owned slaves before the war, served briefly in the Confederate quartermaster corps, and emerged from the war as one of Georgia’s leading Republican lawyers and a delegate to the state’s 1868 constitutional convention. Grant appointed him United States Attorney for Georgia in 1869 and Attorney General in November 1870. Akerman was the architect of the Justice Department’s civil rights enforcement infrastructure in 1870 and 1871. He reorganized the Justice Department, deputized hundreds of additional marshals in the most violent counties, coordinated with Major Merrill in upstate South Carolina, and personally oversaw the prosecution strategy for the October 1871 South Carolina campaign. He was forced out of the cabinet on December 13, 1871, six weeks after the South Carolina proclamation, under pressure from railroad lobbyists whose interests he had opposed and from cabinet officers who considered his focus on the Klan excessive. The Akerman removal is one of the most consequential personnel decisions of the Grant administration and the moment at which federal civil rights enforcement began to lose its institutional centerpiece.

Q: Why was Akerman removed?

Akerman’s removal in December 1871 was the result of a convergence of pressures. The railroad lobby, particularly Collis P. Huntington of the Central Pacific and Thomas A. Scott of the Pennsylvania, had been lobbying Grant against Akerman because Akerman had taken positions adverse to railroad interests in federal land grant litigation. Secretary of State Hamilton Fish, the cabinet officer closest to Grant personally, had grown frustrated with what Fish considered Akerman’s “monomania” about the Klan and the railroad litigation. Some historians, including William McFeely, have argued that Akerman’s prosecutorial intensity had become politically inconvenient as the 1872 reelection campaign approached and Grant sought to position the administration for the campaign against Liberal Republican and Democratic opposition. The combined pressures produced Grant’s decision to request Akerman’s resignation, which Akerman submitted on December 13. He was replaced by George Williams of Oregon, who was less personally committed to civil rights enforcement, administratively less competent, and ultimately a far less effective steward of the institutional infrastructure Akerman had built. The Akerman removal was Grant’s choice. The reasons are explicable in terms of cabinet politics and lobbying pressure, but they do not adequately explain why a president publicly committed to vigorous enforcement six months earlier would weaken the institutional commitment to that enforcement just as it was producing concentrated results.

Q: What did the Amnesty Act of 1872 do?

The Amnesty Act, signed by Grant on May 22, 1872, restored voting rights and the right to hold federal and state office to all but the most senior ex-Confederate civilian and military leaders. The Fourteenth Amendment’s section three had disqualified from political participation any person who, having previously taken an oath to support the Constitution, had engaged in insurrection or rebellion against the United States. The 1872 Amnesty Act removed this disqualification from approximately 150,000 ex-Confederates, leaving perhaps 500 of the most senior leaders still disqualified. The act was the product of a political compromise between Republicans and Democrats. Republicans had agreed to amnesty in exchange for Democratic and Liberal Republican acquiescence in continued voting-rights enforcement. The compromise had been intended to consolidate the Reconstruction settlement by integrating the ex-Confederate political class into postwar politics. In practice, the Amnesty Act significantly weakened the political basis for continued enforcement because it restored to political participation the very class of southern leaders most likely to oppose Reconstruction and to encourage or tolerate the violence that the Enforcement Acts targeted. The act’s passage in May 1872 was, in retrospect, one of the inflection points at which the political coalition supporting enforcement began to erode.

Q: How did the Slaughterhouse Cases affect Reconstruction?

The Slaughterhouse Cases, decided 5 to 4 by the Supreme Court on April 14, 1873, dramatically narrowed the federal protection that the Fourteenth Amendment had been understood to provide. Justice Samuel Miller’s majority opinion held that the Fourteenth Amendment’s privileges and immunities clause protected only a narrow category of federal rights (the right to travel between states, the right to petition Congress, the right to access federal courts) and not the broad bundle of civil rights that congressional Republicans had thought the amendment would federalize. The case itself concerned a Louisiana slaughterhouse monopoly statute and had nothing directly to do with civil rights enforcement against the Klan. But the constitutional theory the Court adopted in Slaughterhouse foreshadowed later decisions that would more directly gut civil rights enforcement, including United States v. Cruikshank (1876), which invalidated indictments brought against the perpetrators of the Colfax massacre, and the Civil Rights Cases of 1883, which invalidated the public accommodations provisions of the 1875 Civil Rights Act. The Slaughterhouse decision did not by its own terms end Reconstruction. It signaled that the Supreme Court would not support the broad constitutional theory on which Reconstruction enforcement rested, and it began the constitutional retreat that the Court’s subsequent decisions completed.

Q: What was the Colfax massacre and why does it matter?

The Colfax massacre of April 13, 1873, was the deadliest single act of Reconstruction-era racial violence. On Easter Sunday 1873, a force of approximately 300 white Democrats organized as paramilitary units attacked the Grant Parish courthouse in Colfax, Louisiana, where Black Republican militia members had gathered to defend the local Republican government against an attempted Democratic coup. The defenders, perhaps 150 men, surrendered after several hours of fighting against opponents equipped with a small cannon. The surrender did not end the violence. After the surrender, Democratic forces killed between 62 and 153 Black defenders, with most estimates settling at 80 to 100 deaths, including many who were murdered after being taken prisoner. Federal authorities under Attorney General Williams brought indictments against 98 participants, but the trial of nine defendants in 1874 produced only three convictions, and those convictions were overturned by the Supreme Court in United States v. Cruikshank in March 1876. The Cruikshank decision held that the federal indictments had not specifically alleged that the violence was racially motivated in a way that would bring it within the narrowly construed scope the Court was giving the Fourteenth Amendment. The case demonstrated everything that had gone wrong with the enforcement regime by the mid-1870s: state complicity with attackers, federal investigators working against active obstruction, intimidated witnesses, Supreme Court hostility to the underlying constitutional theory.

Q: What was the 1875 Civil Rights Act?

The 1875 Civil Rights Act, signed by Grant on March 1, 1875, was the last major civil rights statute of the Reconstruction era. The act prohibited racial discrimination in public accommodations (inns, public conveyances, theaters, and places of public amusement) and in jury service, with federal civil and criminal enforcement provisions. The statute was the legislative legacy of Charles Sumner, who had introduced versions of the bill repeatedly since 1870 and whose final illness in March 1874 had prompted his colleagues to commit to passing the bill in his memory. Sumner reportedly used his last words to ask his colleagues to ensure the bill’s passage. The act passed in the lame-duck session of the 43rd Congress, after the Democratic landslide in the November 1874 elections but before the new Congress had convened. Its public accommodations provisions were invalidated by the Supreme Court in the Civil Rights Cases of 1883 on grounds parallel to Slaughterhouse and Cruikshank, holding that the Fourteenth Amendment authorized congressional action only against state discrimination and not against private discrimination. The act’s substantive enforcement was minimal, but its passage represented the final assertion of the Reconstruction-era constitutional theory before the political coalition supporting that theory was broken by the 1876 election.

Q: Did Grant succeed at Reconstruction?

The honest answer is that Grant succeeded in important short-term ways and failed in important longer-term ways, and the assessment depends on which timeframe and which dimension you measure. In the short term, the 1870 through 1872 enforcement campaign successfully defeated the Klan as an organized network in upstate South Carolina and substantially reduced organized political violence across the Deep South. Grant deserves credit for the institutional infrastructure (the Justice Department, the Solicitor General position, the federal election supervisor system, the Civil Rights Division’s precursor) that was built during his administration and that persisted after his presidency. In the longer term, the political coalition supporting Reconstruction collapsed during Grant’s second term, the Supreme Court invalidated the constitutional theory underpinning federal enforcement, and the Reconstruction settlement that emerged by 1877 left the freedmen substantially worse positioned than the high-water mark of 1872. Grant’s own choices contributed to the collapse, particularly the December 1871 removal of Akerman and the administration’s gradual disengagement from civil rights enforcement during the second term. The verdict that emerges from contemporary scholarship is that Grant was a better president than the Dunning School historiography had portrayed him, but that he was also less consistently committed to Reconstruction’s success than his strongest defenders sometimes argue. The truthful assessment lies between extremes.

Q: Why did northern political will for Reconstruction collapse?

Northern political will for Reconstruction collapsed for a combination of reasons that operated over the early to mid-1870s. The Panic of 1873 and the depression that followed shifted political attention to economic concerns and reduced public tolerance for federal expenditure on southern enforcement. The Liberal Republican movement of 1872, though defeated electorally, drew off significant intellectual and journalistic support for continued enforcement, with intellectuals like Carl Schurz and editors like E.L. Godkin of The Nation arguing that federal intervention had become excessive and self-defeating. The 1874 midterm elections, conducted in the depths of the depression and shaped by emerging revelations of Grant administration corruption (the Credit Mobilier scandal, the Whiskey Ring), produced a Democratic House majority that dramatically curtailed enforcement appropriations and launched investigations damaging to the Republican coalition. The Supreme Court’s decisions in Slaughterhouse and the cases that followed reduced the constitutional space within which federal enforcement could operate. And underlying these proximate causes was a deeper ideological erosion: many northern white voters who had supported emancipation as a war measure were never deeply committed to Black political equality, and as the wartime urgency faded their support for federal enforcement of Black political rights faded with it. The collapse was, accordingly, multi-causal and cumulative, but its outlines were visible by 1872 and its consequences became unmistakable by 1876.

Q: Did the Justice Department exist before 1870?

The position of Attorney General had existed since the Judiciary Act of 1789, but a unified Department of Justice did not exist before the Act of June 22, 1870. Before that act, the Attorney General was a single cabinet officer with a small office in the Treasury building, responsible primarily for advising the president on legal questions and arguing federal cases before the Supreme Court. Federal litigation in lower courts was handled by district attorneys reporting to the executive branch through varying and inconsistent chains of command, with no central supervisory authority. There was no federal investigative arm beyond the Treasury’s customs service and the postal inspectors. The Act of 1870 consolidated federal legal authority under a single department headed by the Attorney General, created the position of Solicitor General to handle Supreme Court litigation, expanded the office’s professional staff, and gave the Attorney General supervisory authority over the district attorneys. The timing of the reform, in the same legislative session that produced the First Enforcement Act, was not coincidental. Congress and Grant understood that the new civil rights jurisdiction required an institutional home, and that the existing scattered structure could not handle it.

Q: How did Cruikshank gut the Enforcement Acts?

United States v. Cruikshank, decided March 27, 1876, invalidated the federal convictions of three participants in the Colfax massacre on grounds that fundamentally undermined the constitutional theory of the Enforcement Acts. The Court’s opinion, written by Chief Justice Morrison Waite, held that the Fourteenth Amendment authorized congressional action only against state action and not against private violence, and that the federal indictments in the case had failed to specifically allege that the perpetrators had acted with racial intent in a way that would bring their conduct within the Fifteenth Amendment’s narrower scope. The decision did not formally invalidate the Enforcement Acts themselves but invalidated the constitutional theory under which most prosecutions under those acts had been brought. After Cruikshank, federal prosecutors had to specifically allege and prove state-action elements and specific racial intent in ways that the underlying violence rarely permitted, particularly when state authorities had been complicit. The decision effectively ended large-scale federal prosecution of organized racial violence in the South. The constitutional theory of broad federal civil rights jurisdiction would not be revived until the 1960s, when the Civil Rights Cases of the 1960s and the constitutional reinterpretation under the Warren and Burger Courts gradually rebuilt the federal civil rights enforcement regime on partly new and partly recovered constitutional foundations.

Q: Was Grant a good president?

Grant has been the subject of one of the most significant historiographic reassessments of any American president over the past fifty years. For most of the twentieth century, the Dunning School historiography and the Lost Cause cultural narrative had presented Grant as corrupt, incompetent, and tragic, with his civil rights enforcement ignored or condemned. Scholarship since the 1970s, accelerating with H.W. Brands’s The Man Who Saved the Union and Ron Chernow’s Grant, has rehabilitated his reputation substantially, recognizing the boldness of his civil rights enforcement, the institutional accomplishments of his administration including the Justice Department’s creation, his role in the Treaty of Washington’s resolution of Civil War-era disputes with Britain, and the resilience of his coalition in the face of Liberal Republican defection. The honest assessment is that Grant was a better president than the early-twentieth-century historiography portrayed him, with substantial accomplishments in civil rights enforcement, foreign policy, and institutional development, but that his administration also experienced significant corruption (the Credit Mobilier scandal, the Whiskey Ring, the Belknap impeachment, the gold corner attempt) and that Grant’s choices during his second term contributed to the collapse of the Reconstruction enforcement campaign he had initiated in the first. The C-SPAN survey ranking trajectory, traced in detail in this series’s treatment of Grant’s rehabilitation from 28th to 17th in historian rankings, shows Grant moving from the bottom decile in mid-twentieth-century surveys to the middle quartile in recent surveys, with continued upward pressure as the underlying reassessment continues.

Q: What was the connection between Grant’s enforcement and Eisenhower at Little Rock?

The institutional and legal connection between Grant’s October 1871 South Carolina proclamation and Eisenhower’s September 1957 deployment of the 101st Airborne to Little Rock is direct and underappreciated. Both presidents exercised the federal executive’s authority to use military force in support of civil rights enforcement against state-level resistance. Both rested their authority on the federal duty to enforce constitutional rights when state authorities had demonstrably failed to do so. Both invoked legal authorities that traced through the Reconstruction-era statutes and constitutional amendments. The 86-year gap between the two deployments is the longest gap in federal civil rights enforcement in American history, and the gap represents a dormancy of political will rather than a gap in legal authority. Andrew Nichols’s A Matter of Justice argues that Eisenhower’s civil rights record was more active than conventionally remembered, and that the Little Rock deployment was a deliberate reactivation of the federal enforcement infrastructure that had been built during Reconstruction. The detailed treatment of Eisenhower’s decision-making in September 1957, including the specific moment of Mayor Mann’s telegram that triggered the deployment, appears later in this series. The pattern visible from the comparison of Grant 1871 and Eisenhower 1957 is that federal civil rights enforcement requires both legal authority and political will, that the authority can survive long periods of dormancy, and that the political will is what determines whether the authority is invoked.

Q: Why did Grant’s reputation suffer for so long?

Grant’s reputation suffered for nearly a century after his death in 1885 because of the convergence of three powerful historiographic and cultural forces. The Dunning School, emerging from Columbia University under William Archibald Dunning in the early twentieth century, presented Reconstruction as a tragic federal overreach that had harmed the South unnecessarily, with Grant as one of the central figures responsible for the overreach. The Lost Cause cultural narrative, propagated through Confederate veterans’ organizations, the United Daughters of the Confederacy, popular fiction, and especially D.W. Griffith’s 1915 film Birth of a Nation, vilified the Reconstruction-era federal government and romanticized the Klan resistance. The progressive historiography of the early twentieth century, while different from the Dunning School in many respects, shared the broader cultural premise that Reconstruction had failed and that Grant had been a part of that failure, with progressives focusing on the corruption of Grant’s administration as evidence of the broader political decay of the Gilded Age. These three forces together kept Grant near the bottom of presidential rankings from the first systematic surveys in the 1940s through the 1970s. The reassessment began with the post-civil rights generation of historians (Foner, McPherson, Blight) who reread Reconstruction without the Dunning premises, accelerated with the publication of major Grant biographies by Brooks Simpson, Jean Edward Smith, H.W. Brands, and Ron Chernow, and continues into the present. The series’s separate piece on the ranking rehabilitation from 28th to 17th traces the trajectory survey by survey.

Q: What would have happened if Grant had pushed harder?

The counterfactual of more vigorous and sustained enforcement during Grant’s second term is one of the most consequential what-ifs in American history. The most plausible scenario, sketched by Foner and developed by Mark Wahlgren Summers in The Ordeal of the Reunion, runs roughly as follows. Akerman is retained as Attorney General through 1873. The enforcement infrastructure built in 1870 and 1871 is sustained and expanded. Federal prosecutions continue at the 1871 to 1872 pace through the mid-1870s, with continued military and prosecutorial pressure against successor organizations to the Klan. The Slaughterhouse and Cruikshank decisions are pushed back against by the administration, with continued aggressive litigation that might have produced different constitutional outcomes before a Court whose composition Grant continued to influence through his three remaining Supreme Court appointments. The 1875 Civil Rights Act is signed with a public schools provision intact and with stronger enforcement mechanisms. The 1876 election proceeds without the structural collapse of Republican governments in the Deep South that the actual 1875 and 1876 violence produced. The Compromise of 1877 either does not occur or occurs on terms more protective of southern Black political rights. None of this is certain. Each step required Grant to make choices he did not make. But the counterfactual is not fantastical; it is a sketch of choices that were available and that other observers, including Akerman himself, urged at the time. The detailed treatment of the Lincoln counterfactual and how Reconstruction might have unfolded had Lincoln survived raises parallel questions about Reconstruction’s contingent character elsewhere in this series.

Q: How does Grant’s enforcement campaign relate to Andrew Johnson’s vetoes?

The relationship between Andrew Johnson’s 1866 vetoes and Grant’s 1870 through 1872 enforcement campaign is one of cause and effect, with Johnson’s vetoes setting the conditions that the Enforcement Acts and Grant’s enforcement campaign were designed to address. Johnson’s veto of the Freedmen’s Bureau bill in February 1866 and his veto of the Civil Rights Act of 1866 in March 1866, both of which Congress overrode, signaled that the executive branch under Johnson would not support active federal enforcement of the rights of the freedmen. Johnson’s veto strategy, which included 29 total vetoes during his administration and a 52 percent override rate that remains the highest in presidential history, effectively transferred Reconstruction policy from the executive to the legislative branch. The Fourteenth Amendment was drafted partly in response to Johnson’s vetoes, to constitutionalize the protections that Johnson had attempted to block. The Reconstruction Acts of 1867 and 1868 imposed congressional Reconstruction policy on the South over Johnson’s objections. By the time Grant took office in March 1869, the constitutional and legal architecture of Reconstruction had been substantially built by Congress against Johnson’s resistance, but the enforcement infrastructure had not yet been built. Grant’s 1870 through 1872 enforcement campaign was, in important respects, the completion of what Johnson’s vetoes had prevented from happening in 1866 and 1867. The detailed treatment of Andrew Johnson’s veto strategy and the 1866 break with Congress is developed elsewhere in this series, which examines the specific decisions and political calculations behind the 1866 vetoes.

Q: What does the Reconstruction-era enforcement campaign teach us about federal civil rights enforcement generally?

The Reconstruction-era enforcement campaign teaches several lessons that have been borne out by subsequent civil rights enforcement history. First, federal civil rights enforcement requires institutional infrastructure (the Justice Department, the Solicitor General, the federal court system with adequate staffing and jurisdiction) as well as legal authority. The Enforcement Acts would have produced fewer prosecutions and weaker outcomes if the Justice Department had not been created and Akerman had not built the prosecutorial machinery. Second, federal civil rights enforcement is politically contingent in ways that purely legal analysis often underestimates. The same legal authorities can produce vigorous enforcement in one administration and dormant authority in the next, depending on political will at the executive level, congressional appropriations, and broader public support. Third, the institutional infrastructure created during periods of vigorous enforcement tends to outlast the periods of vigorous enforcement themselves, providing the foundation for later reactivation when political conditions change. The Justice Department that Akerman built in 1870 was substantively dormant from 1877 to 1939 in civil rights terms, but it persisted institutionally and was available to be reactivated by Frank Murphy in 1939 and by the Eisenhower, Kennedy, and Johnson administrations in the 1950s and 1960s. Fourth, the constitutional doctrines that support federal civil rights enforcement are themselves politically contingent, capable of being narrowed by hostile Supreme Courts (as Slaughterhouse and Cruikshank narrowed the Fourteenth Amendment) and capable of being expanded by sympathetic Courts (as Monroe v. Pape and the 1960s decisions reactivated Section 1983). The pattern across nearly two centuries of federal civil rights enforcement is one of expansion under political and legal conditions favorable to it, contraction under conditions hostile to it, and persistent institutional residues that can be reactivated when conditions change again.