Vol 11: Andrew Johnson's Dreadfully Pivotal Presidency; Dark Age Laws We Could Bring Back
Mark discusses how Andrew Johnson's presidency helped fuel nine decades of Jim Crow; Jack uses the standard set by conservative judges to consider other backwards laws we could reinstate.
Legacies Assessed
Nine Months and Nine Decades: The Long Shadow of Andrew Johnson’s Presidency
By Mark McKibbin
In 1864, the Civil War was not going well for the Union. Neither the North nor the South expected the war to continue for as long as it did. Facing voters with little to show for his first four years other than a stalemate with the Confederate army, Lincoln’s re-election bid was in grave danger. The vice-presidential selection process afforded Lincoln an opportunity to boost his dreary political prospects. Lincoln needed a VP nominee who could bring a sense of balance to the ticket and fortify his political weaknesses.
Andrew Johnson seemed to check all the boxes. He was a Democrat, giving the Republican Lincoln cross-party appeal. Johnson’s loyalty to the Union and tough talk about traitors as military governor of Tennessee gave the Republican ticket cross-geographical appeal—saving the Union was an American project, not just a Northern one. Like Lincoln, Johnson had come from humble roots, had the appearance of a self-made man, and could give a rousing speech on command.
As Republicans had hoped, Johnson served as an effective attack dog for Lincoln. Johnson lambasted traitors and copperheads on the campaign trail while Lincoln stayed about the fray. In the end, however, a series of Union military victories in the fall of 1864, not Johnson’s presence on the ticket, propelled Lincoln to victory.
Johnson’s tenure as VP did not get off to a great start. He showed up visibly drunk to Lincoln’s second inauguration, giving a blundering, buffoonish speech as Lincoln, his cabinet, and members of Congress looked on in horror. Johnson was mostly relegated to obscurity in the VP position. Coincidentally, Johnson’s most notable action as VP, advising Lincoln not to accept the Confederate surrender on too lenient of terms, occurred on the afternoon of April 14, a few hours before Lincoln’s assassination at the hands of John Wilkes Booth that evening at Ford’s Theatre.
That night, Johnson stood at Lincoln’s bedside beside Lincoln’s cabinet members, most of whom had not seen Johnson since his drunken inauguration speech and now faced the uncomfortable prospect of Johnson becoming their boss. Johnson did not yet know that he escaped his own brush with death that evening. Booth had conspired to assassinate Johnson and Secretary of State William Seward as well as Lincoln in hopes of overthrowing of the U.S. government. Seward barely escaped with his life, incurring slashes to his neck that left lifelong scars. The assassin Booth enlisted to execute Johnson, however, decided to get drunk instead of performing his task. Don’t let anyone ever tell you history lacks irony.
At first, even many of the most militant Confederates were devastated about Lincoln’s assassination. The vanquished southerners suspected Lincoln's terms of reunification would be less punitive than Johnson’s, as Johnson was known for his harsh rhetoric towards traitors. For the same reason, radicals who worried about Lincoln's conciliatory attitude towards the South were initially optimistic about Johnson's presidency.
Upon assuming office, Johnson seemed to be living up to his tough-on-traitors reputation. He offered a $100,000 reward (or approximately $2 million today) for the capture of Jefferson Davis. He ordered a military tribunal for those suspected of participating in Lincoln's assassination. He refused to commute the sentence of convicted assassination conspirator Mary Surratt, the first woman in American history executed by the federal government.
When Johnson met with radical Republican Massachusetts U.S. Senator Charles Sumner in May, Sumner left the meeting believing Johnson was amenable to his ideas. Johnson’s 1864 speech promising a crowd of free Blacks that he would be their "Moses" in the Lincoln administration did nothing to dissuade Sumner of this assumption. Additionally, Johnson's record of advocating for homesteads for poor whites as a member of Congress added to radical hope that Johnson's sympathy for the downtrodden would extend to the plight of Black freedmen. Radicals were naïvely optimistic that Johnson would see the elevation of Blacks as a proper punishment for racist white traitors.
But Johnson’s previous intimations about equality had been a ruse to throw Republicans off his scent. When given the choice between empowering traitors and elevating Blacks, Johnson chose the former every single time. He hated the wealthy white planter class. But he hated Blacks more. Every decision Johnson made was an offspring of his zero-sum view on Black-white relations: either Blacks or whites would be crowned as America’s superior race in the wake of the Civil War. Racial equality was impossible.
Johnson’s racist attitude would have been devastating to American progress at any point, but especially in the middle of 1865. Congress had adjourned in March, entrusting Lincoln with broad authority over the day-to-day political operations involving Southern Reconstruction. In his last speech on April 9, 1865, Lincoln had endorsed limited black suffrage. When Lincoln’s authority passed to Johnson following Lincoln’s assassination five days later, millions had hoped Johnson would emulate Lincoln’s benevolent approach to Reconstruction, which was guided by a commitment to pragmatism and a willingness to change course when called for.
But it was not to be. Instead, Johnson’s Reconstruction approach was defined by intransigence, recklessness, and a callous commitment to white supremacy. In May, Johnson recognized several state governments that had not yet granted suffrage to Blacks, even though it was within his power to make suffrage a condition of readmission to the Union, as he had done with the 13th Amendment abolishing slavery. On May 17, Johnson removed General Nathaniel Banks as military governor of Louisiana. James Madison Wells, Johnson’s selected replacement, obliterated the Louisiana regime Lincoln and Banks had collaborated on and abandoned the humane treatment Banks had afforded freedmen. On May 29, Johnson issued a proclamation giving blanket amnesty to Confederates who met certain conditions while requiring others to apply for individual pardons. At first, Johnson was stingy about issuing individual pardons. But by September, he was handing out pardons like candy. He appointed provisional governors in Georgia, Alabama, Mississippi, Florida, and South Carolina who openly opposed Black suffrage. These provisional governors then elevated former Confederates to positions of leadership in the various states and oversaw the implementation of inhumane Black codes.
In addition to weaponizing the extraordinary powers afforded to him as a wartime president, Johnson refused to faithfully implement existing laws designed to assist freedmen.
Under the Freedmen’s Bureau Act Lincoln signed into law in March of 1865, plots of land would be sold or rented to freedmen. In the antebellum South, much of the actual planting had been done by formerly enslaved people who were now freedmen. Land was an essential resource in helping the freedmen achieve economic mobility. Johnson fully understood the importance of land to exercising the rights of a free citizen. As mentioned earlier, while in Congress, Johnson had championed a similar land scheme for poor whites through his support of the Homestead Bill. But rather than allowing the Freedmen’s Bureau Act to go into effect, Johnson overturned General William Sherman’s Field Order No. 15 designating 40-acre plots of land Confederates had abandoned for freedmen. It fell to Oliver Howard of the Freedmen's Bureau (the namesake of Howard University) to inform the freedmen that they would not receive the land they had been promised after all.
Members of Congress met with Johnson and pled with him to call a special session of Congress before they reconvened in December of 1865. They wanted a say in Johnson’s Reconstruction decisions. Johnson, seeking to maintain his dictatorial control over the Reconstruction process as long as possible, refused. According to Eric Foner, the pre-eminent historian of the Reconstruction Era, Johnson adopted this lenient approach to advance his ideological objective of entrenching white supremacy and his political objective of fostering a racially conservative political base for a future re-election bid. That year, white southerners sent letters to the White House showering Johnson with praise, further encouraging his actions.
When Congress finally did return in December of 1865, Johnson and congressional Republicans clashed, with Johnson vetoing any congressional bills that sought to extend more rights and protections to Black freedmen in the South. Congress then overrode Johnson’s vetoes. Congress also enacted the 14th Amendment, which, in the first of its five sections, established birthright citizenship and thus overturned the infamous Supreme Court ruling in Dred Scott v. Sanford that Blacks could not become U.S. citizens.
In 1868, Johnson fired Secretary of War Edwin Stanton, a violation of the Tenure of Office Act passed over Johnson’s veto to stop him from doing precisely that. The House responded by impeaching Johnson. Johnson was then acquitted in the U.S. Senate by one vote. Johnson, disgraced and disdained, unsuccessfully sought the Democratic nomination for president in 1868. Instead, Democrats gave the nod to former New York Governor Horatio Seymour. Seymour was then trounced by former Union Commander Ulysses S. Grant in the November election. Johnson refused to attend Grant’s inauguration.
Following his departure from the presidency, Johnson ran and lost for U.S. Senate in Tennessee three times before a successful fourth bid in 1875. A few months after assuming office, Johnson suffered a stroke and died. Some memorialized him with respectful and endearing words. Others followed the advice many of us learned in kindergarten: if you don’t have anything nice to say about someone, don’t say anything at all.
Nearly everyone agrees that Grant’s presidency was a marked improvement from Johnson’s. Grant’s eight years in office saw remarkable progress on racial equality. The United States ratified the 15th Amendment, extending suffrage to American men regardless of race. A record number of Black men held state and federal public office. There was an unprecedented growth in Black public education. Public places were desegregated in several southern states. In 1871, Congress passed the Ku Klux Klan Act to combat the Klan’s campaign of racial terror in the South. Grant’s justice department secured hundreds of convictions against Klan members, temporarily deterring further violence and making the 1872 election the most peaceful of the Reconstruction era.
However, most of the extraordinary accomplishments achieved during Grant’s presidency did not extend beyond his eight-year term. In Grant’s second term, Congressional Republicans became fatigued with Reconstruction. Democrats gained political momentum. With the Compromise of 1877, Congress agreed to give Republican presidential candidate Rutherford B. Hayes the disputed electoral votes from the previous year’s election and the U.S. Presidency in exchange for Hayes’s promise to withdraw all federal troops from the southern states. The compromise signaled that immediate hopes for a racially progressive future for southern Blacks, which were already on life support, would meet a slow but definitive death. For the next nine decades, Jim Crow reigned in the American South until the tremendous moral force of the Civil Rights Movement finally broke the political inertia that favored white supremacy.
As aptly put by the historian Heather Cox Richardson, "Reconstruction failed not because Southern whites opposed it — although most of them did — but because Northerners abandoned it.” But Andrew Johnson’s steadfast commitment to entrenching white supremacy played a pivotal role in eroding Northern political will for Reconstruction. In fact, the nine-month period between April 1865, when Johnson took office following Lincoln’s assassination, and December 1865, when Congress returned to Washington, were the most consequential of Johnson’s presidency.
Johnson used his unchecked presidential power to pardon scores of former Confederates, appoint avowed white supremacists as provisional governors in southern states, and revoke land grants designated for freedmen. On top of all this, Johnson declined to intervene when informed about heinous acts of violence being committed against southern Blacks.
By the time Congress had returned and overrode Johnson's vetoes of various civil rights measures, white supremacists felt like something was being taken away from them, and were determined to get it back. By contrast, Reconstruction-era historians believe if Johnson had taken a hard line against former Confederates and been openly supportive of Black suffrage and Black rights in 1865, many former Confederates, still licking the wounds of defeat, would have acquiesced to presidential direction. Confederate Secretary of the Treasury Christopher G. Memminger remarked that the vanquished southerners were “willing to acquiesce” to most any conditions the president imposed for re-admission, but Johnson "breathed new energy and life" into white supremacy. If Johnson had supported Black suffrage in 1865, Memminger conceded, Southerners probably would have taken a "different course as to the negroes."
Even when Republicans had victories legislative victories, they never regained the momentum Johnson’s first nine months deprived them of. Republicans were willing to slow down white supremacy, but not enough of them were willing to make the difficult political choices necessary to undo what Johnson’s 1865 actions had wrought. Johnson’s first nine months gave crucial momentum to what became nine decades of Jim Crow. The period between April and December 1865 was the most squandered window of opportunity afforded to a U.S. President in American history.
Johnson’s long shadow shows how much presidential leadership matters, even in the absence of a supportive Congress. In the contemporary, many have pointed out that whether Biden or Trump wins the 2024 election, House and Senate electoral math means there is a good chance either victor will face a divided Congress, making most of their legislative agenda dead on arrival. This scenario begs the question: can the next president still have a transformational impact on American politics?
Yes. Andrew Johnson's presidency demonstrates that even with a hostile Congress, the presidency has tremendous administrative and moral power. In 2025, regardless of who controls Congress, the next president will have control over whether the FDA allows millions of women to have access to medication for abortion. They will oversee the implementation of the Inflation Reduction Act’s prescription drug and clean energy provisions. They will appoint 4,000 positions in the federal government. They will determine whether the individuals who attacked the Capitol on January 6, 2021, are pardoned for attempting to overturn the results of a free and fair election, which Trump has promised he will do.
In 1864, Pennsylvania Congressman Thaddeus Stevens was one of the few individuals who saw Andrew Johnson for who he was. Stevens advised Lincoln against selecting Johnson as his VP pick, saying: “Mr. President, Johnson is a rank demagogue, and I suspect at heart a damn scoundrel.”
Lincoln did not heed Stevens’s warning. The nation paid dearly.
In Lincoln’s defense, Johnson had been clever about muddling who he was. By contrast, we know exactly who Donald Trump is.
Rank demagogue? Check. Trump says he wants to be a dictator on day one.
Damn scoundrel? Check. Trump is the first president in history to be impeached twice, has accrued 91 criminal indictments, and has claimed that immigrants are poisoning the blood of our country.
There is no time machine we can use to go back to April 14, 1865, stop Lincoln’s assassination, and reverse the long shadow Andrew Johnson cast over American history. However, we can learn from Lincoln’s mistake, heed the clear warning signs about Donald Trump, and limit the size of Trump’s shadow in the American history books that have yet to be written. ♦
Note on the text: the information in this article, unless otherwise hyperlinked, is sourced from the following books: Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (1988); Eric Foner, The Second Founding (2019), Annette-Gordon Reed, Andrew Johnson (2011); Hans Trefousse, Andrew Johnson: A Biography (1989).
A Smidge of Satire
The Arizona Supreme Court Revived an Anti-Abortion Law from 1864. Here Are Other Laws They Could Consider Bringing Back, Too
By Jack Carter Benjamin
Last week, the Arizona Supreme Court moved to reinstate an anti-abortion law now that Roe v. Wade has been overturned. The law was written and signed in 1864 – before Arizona was even an incorporated state.
Justice John Lopez IV, in writing the 4-2 opinion, emphasized the case they were considering “involves statutory interpretation – it does not rest on the justices’ morals or public policy views regarding abortion; nor does it rest on [the 1864 law’s] constitutionality, which is not before us.”
The court found that because the 1864 law was never formally rescinded (though its effect was nullified under Roe v. Wade’s granting of federal rights to abortion), now that Roe has been overturned, the 1864 law is “now enforceable.”
A technically reasonable legal opinion, but one which cruelly removes long-held human rights based on a law that is one-hundred-sixty years old. Keep in mind, Arizona in 2022, following the overturning of Roe, already passed a fifteen-week abortion ban.
It is not the first time top justices in the American legal system have looked to the distant past in aiding their decision making. In overturning Roe, for example, Samuel Alito cited the opinion of Sir Matthew Hale, a seventeenth-century English barrister whose treatises laid the foundation for laws exempting marital rape as a crime.
While justices are spending so much time bringing back opinions that are a bit outdated, I’m curious why they haven’t gone even further. After all, why stop at 1864? There’s a very rich history of heinous laws enacted to control women and minority classes from which to mine.
For example, for those judges looking to remove women’s rights, they could cite Roman law, which allowed for fathers to kill their own daughters if they committed adultery. If not, they can always turn to England’s witchcraft laws, which existed in some form between 1542 and 1736. The crime if you were found guilty of being a witch? Death.
Want to support a crackdown of social and political dissent? They need look no further than French Revolution’s “Terror is the order of the day” decree, or the Law of 22 Prairial, the latter of which removed rights from persons accused of being enemies of France.
Heck, one does not even need to look so far into history to find outdated and backwards laws. Maryland law, for example, currently prohibits adultery (albeit, with a punishment of a ten-dollar fine).
Old laws can often appear silly or inhumane by contemporary standards. But today’s conservative judges have shown that there are few limits to deciding which draconian or barbarous laws of the past they will dust off the shelf in their quest to transform The Handmaid’s Tale from a dystopian fictional tale into a documentary. For the all the pearl clutching about progressives pushing the envelope on social issues, they are currently on the losing end of the ongoing culture war, at least when it comes to basic rights.
Though the American political tradition was founded upon enlightenment ideals, there has always been a puritanical strand in American society looking to will us back to a time long since passed. But the danger is especially present today, thanks in part to Republican presidents outsourcing to the Federalist Society their responsibility to nominate federal judges, with full support of GOP congresspeople.
It is worth remembering that behind every dumb or needlessly harmful law is someone in power that benefitted from that law. Witchcraft laws gave oligarchs a scapegoat to justify their centralization of power. The Reign of Terror killed off dissidents considered pesky to whoever happened to be running the French Revolution on a particular day.
Restricting freedom aids despotic power. In the contemporary case, religious fundamentalist judges are terrified that women being able to control their own bodies is a slippery slope to subverting the patriarchal structures from which they have reaped abundant dividends, including the all-expenses-paid retreats Republican donors send them on to “learn more about the Constitution.”
Of course, while laws may be written and passed, they need not be enforced. Democrat Kris Mays, Arizona’s state attorney general, has said she has no intention of prosecuting on the basis of that law, nor Arizona’s existing fifteen-week abortion ban. It is a righteous position to take, and it speaks to the importance of electing state and local prosecutors to represent your best interests.
Laws require a large number of people to agree not only to sign them, but to carry them out. Just look at Donald Trump’s brazen flaunting of countless laws, or OJ Simpson’s getting away with murder, to see how law can be enforced selectively.
Still, the Republican Party – especially its evangelical wing – has long emphasized control over the judiciary as a core political focus. Liberal-minded thinkers would be wise to do the same, lest we see more medieval citations in legal opinions moving forward. ♦