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The South Carolina Constitutional Convention of 1868
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Today I’d like to draw your attention to the 150th anniversary of an important event in the history of Charleston, and the history of South Carolina in general. During a two-month period in the late winter of 1868, elected delegates from every corner of South Carolina gathered in Charleston to frame a new state constitution. Why? Because the United States Congress required this new constitution as one of the principal steps in South Carolina’s readmission to the American Union after the Civil War. This event might not qualify as the most exciting topic in the history of the Palmetto State, but it’s certainly an episode that merits a place in our collective memories. I’ll be the first to admit that this topic is a bit outside of my professional wheelhouse, but I implore you to keep reading. An understanding the South Carolina Constitution of 1868, especially the context surrounding its creation, is absolutely vital for understanding the political and social strife that have characterized our state’s history for the past one hundred and fifty-odd years.
In late February of 1865, United States military forces occupied Charleston and quickly spread throughout the rest of South Carolina. In the immediate aftermath of their arrival, agents of the U.S. Army began supervising the work of restoring order and re-establishing a sense of normalcy. This was the beginning of a long process of rehabilitation and reconciliation between the rebellious Confederate States and the old federal union of the United States. Historians refer to these post-war years as the era of “Reconstruction” because the civil governments of each of the rebellious states had to be “reconstructed” in a manner approved by the Union. Textbooks tells us that this period of Reconstruction lasted into the 1870s, more than a decade after the end of the Civil War, but today I’m going to focus on first three years immediately following the war. In the parlance of that era, we’re talking about the era of Presidential (or “Provisional”) Reconstruction, which was followed by a period of Congressional (or “Radical”) Reconstruction.
The era of Presidential (or “Provisional”) Reconstruction commenced in the late spring of 1865, shortly after the U.S. military had taken firm control of South Carolina and the other Confederate States and brought an end to the fighting. In May 1865, a number of South Carolina’s civilian leaders, having taken the necessary oaths of allegiance to the U.S. of A., made overtures to the federal government to begin the process of restoring civilian government to the state. In late June, President Andrew Johnson appointed Benjamin Perry of Greenville to be provisional governor of South Carolina, and to lead the effort to form a government. At the same time, the nation’s chief executive also dictated the conditions under which South Carolina would be permitted to rejoin the American Union: assemble a body of delegates elected by “loyal” white voters who had taken the necessary oaths of allegiance, create a new state constitution (to be approved by the U.S. Congress), acknowledge the abolition of slavery, nullify the Ordinance of Secession, and repudiate South Carolina’s war debt.
In July 1865, Governor Perry called for the election of delegates to form a convention to craft a temporary state constitution. The men elected to this convention represented the least obnoxious of the recent rebels, those most inclined to move forward rather than dwell on the past. Nevertheless, they represented vestiges of the “old guard” familiar with the patterns of South Carolina’s exclusionary political traditions. The convention assembled in Columbia on September 13th, and on the 27th of that month adjourned with a new, provisional state constitution. The South Carolina Constitution of 1865 was definitely a step towards aligning the state’s government with that of the Union, but it included too much of the status quo ante bellum and not enough reform. In the early months of 1867, the U.S. Congress nullified it and forced South Carolina to start again from scratch. But I’m getting ahead of myself.
The state constitution of 1865 established the framework for a working government, which convened in Columba on October 25th, after the necessary election of representatives. Over the next two months, the South Carolina legislature set about crafting a new political machine for the state, while at the same time working to fulfill all the requirements prescribed by President Andrew Johnson. For example, the legislature adopted a resolution acknowledging the end of slavery and ratified the 13th Amendment to the U.S. Constitution (which prohibited the practice of slavery), while at the same time paving the way for former slave owners to seek compensation for lost human property. The new state legislature ruffled Union feathers when it neglected to repudiate or write-off South Carolina’s war debt, but that economic issue was overshadowed by another, more conspicuous misstep. During the legislative session of late 1865, the South Carolina General Assembly passed a series of laws to restrict and control the rights and abilities of African Americans in the state. These laws became known as the “Black Code” and instantly formed a political hot potato. The provisional legislature was clearly unwilling to acknowledge that formerly-enslaved people had a right to full citizenship, and it felt no embarrassment in articulating the limitations of their rights and liberties. At best, the recently-freed men and women were merely second-class citizens. Critics everywhere decried this perpetuation of the paternalistic “vestiges of serfdom.” At the end of 1865, South Carolina was scoring very few points on its road to re-admission to the Union.
In January 1866, the military commander superintending South Carolina nullified the “Black Code” ratified by the South Carolina legislature just a few weeks earlier. The state legislature attempted to placate Union sentiment by revising the Code later in 1866, but the damage was done, and other egregious political missteps were looming on the horizon. On April 9th, 1866, the U.S. Congress ratified a law that became known as the “Civil Rights Act” of 1866, which formed a major step in securing the legal right to citizenship to all native-born Americans, regardless of their race, color, or former condition. Two months later, on June 16th, 1866, Congress approved the text of a 14th Amendment to the U.S. Constitution and sent it out to the states for ratification. To refresh your memory, the 14th amendment identified all native-born Americans as citizens, endowed all male citizens (age 21 and above) with the right to vote, and promised to all people equal protect under the law. It also barred some classes of ex-Confederates from voting or holding elected office, but that’s another story for another time.
In the autumn of 1866, South Carolina was at a political crossroads. The provisional legislature convened in Columbia and reviewed its task of reforming the state’s government to conform to the requirements outlined by President Johnson. In the spirit of compromise, the white, male legislature was willing to revise the laws known pejoratively as the “Black Code,” but they balked at the text of the proposed 14th amendment to the U.S. Constitution. Why? The answer can be found in countless newspaper editorials published during that time. The elected leaders of South Carolina refused to allow formerly-enslaved men the right to vote and refused to acknowledge the equality of all citizens. On December 20th, 1866, at the end of its legislative season, the South Carolina General Assembly officially rejected the new amendment. In fact, the provisional governments of all of the former Confederate States (except Tennessee) rejected the proposed 14th Amendment. Back in Washington, D.C., this mass refusal was the last straw in an increasingly stressful political situation.
When the United States Congress convened in Washington, D.C. in early 1867, the principal topic of debate was the recalcitrance of the Southern states. In the summer of 1865, President Andrew Johnson had outlined for each of the former Confederate states a reasonable path to re-admission in the Union, but their progress was slow and less than satisfactory. In order to motivate the rebellious states into toeing the line, Congress decided, more aggressive, or “radical” means were necessary. On March 2nd, 1867, the United States Congress ratified “An Act to Provide for the More Efficient Government of the Rebel States.” In the newspapers of 1867, this law was sometimes called the “Admission Act” because it outlined a new list of actions required of each of the “rebel” states before they would be readmitted to the Union, but most historians refer to it as the “Reconstruction Act”. (Actually, it was amended three times by supplemental laws passed on 23 March 1867, 19 July 1867, and 11 March 1868). The Reconstruction Act of March 1867 was the first step in a new era of post-war politics that became known as Congressional Reconstruction, or “Radical” or “Military” Reconstruction.
Sweeping aside the past two years of “provisional” reconstruction, Congress declared that “no legal state government” existed in any of the Southern states (except Tennessee), and divided the South into five military districts, each to be administered by a U.S. military commander. (North and South Carolina together formed U.S. Military District No. 2). The entirety of the South (except Tennessee) was to live under martial law until the states met the following benchmarks: All male citizens, regardless of race, color, or former condition (except certain ex-Confederate leaders) must be permitted to elect delegates to participate in new state constitutional conventions. The new state constitutions must provide for universal male suffrage, and the said constitutions had to be approved by the U.S. Congress. Finally, each of the states had to ratify the 14th Amendment to the U.S. Constitution. Once each of these requirements had been met, the President of the United States would consider readmitting the states to the Union.
As this Federal law descended into the Southern states, another political movement was afoot in Charleston. Beginning in March 1867 and continuing into July, a series of public meetings in this city and in Columbia led to the formation of the Republican Party of South Carolina. This organization, the party of the late Abraham Lincoln, was a new phenomenon in the South, comprised of formerly-enslaved men, black men who had once been “free persons of color, and liberal-minded white men. In most of the newspapers of that era, however, Republicans in the South were identified by a number of pejorative terms, including “native Negroes,” “carpetbaggers” (Northerners “interfering” in Southern politics), and “scalawags” (white Southern men who allied themselves with the “native Negroes”).
The rise of the Republican party of South Carolina was sparked by the Congressional Reconstruction Act of March 1867, and by the end of the summer it was a functioning political machine. The timing was fortuitous, but not coincidental. Everyone knew that the elections would soon be held to move toward a new constitutional convention and the creation of a new state government. On 16 October, the military commander in control of South Carolina announced the upcoming election date, and voters across the state scrambled to register. On November 19th and 20th, 1867, voters went to the polls to vote “For a Convention” or “Against a Convention.” Those who voted in favor of a convention were also asked to select delegates from their respective voting districts. This was the first election in South Carolina history in which African-American men were allowed to participate. Not surprisingly, the vast majority of the voters were Republicans who voted for a convention. They elected 124 delegates from across the state, and plans were set in motion for a new constitutional convention to be held in Charleston in mid-January, 1868.
On 14 January 1868, the delegates gathered in Charleston at a large, three-story brick mansion on the west side of Meeting Street, just south of Broad Street. This was the home of the Charleston Club, a private organization formed in 1852, but it was now commandeered by federal military authority for public use. The men who met and debated in the cavernous Club House for fifty-three working days included a mix of political newcomers and some experienced veterans. The majority, seventy-six men, were African-Americans, most of whom had been emancipated from slavery only a few years earlier. Seventeen were black men from Northern states who had come south to lend their experience to the work of reconstruction. The 1868 convention also included forty-eight white delegates, fifteen of whom were non-natives. The twenty-three remaining white men included a handful of conservative Democrats, but the majority represented the liberal Republican Party. This group included the sixty-one-year-old Albert G. Mackey (1807–1881), who was elected president of the convention on the second day of proceedings.
Thanks to the work of a professional stenographer who attended the convention, you can read the entire text of the Proceedings of the Constitutional Convention of South Carolina, which is now available online. There you’ll find numerous discussions of legislative procedure, jurisprudence, eminent domain, corporate taxes, and many other not-so-riveting topics. But you’ll also find earnest debates about whether or not illiterate men should be allowed to vote, for example, or whether or not the state should fund education for black and white children equally. In such debates, and many others, the delegates made decisions that were considered quite “radical” in their day. They affirmed, for example, that every male citizen (aged 21 and above) had the right to vote, regardless of their educational background or material wealth (see Article 8, section 2). They affirmed that all children were required to attend state-sponsored schools (for at least twenty-four months between the ages of six and sixteen) (see Article 10, section 4). They declared that a wife had the right to own property that could not be taken to satisfy her husband’s debts (see Article 14, section 8). Although women would have to wait another fifty-two years to gain the right to vote, the Constitution of 1868 made divorce legal in South Carolina for the first time, thus creating an escape route for women who felt trapped in a dysfunctional marriage (see Article 14, section 5).
On the 17th day of March, 1868, the fifty-third day of convention, the delegates completed their work and adopted a new constitution for the state of South Carolina. The form of this document was not unusual or novel, at least not when compared to the constitutions of other American states, but in many ways it was a radical departure for a state just emerging from a long history of slavery. The text included a preamble and fifteen articles comprised of 195 paragraphs. The most extensive article was the first, the “Declaration of Rights,” which included forty-one separate sections. Article 1, section 1, for example, echoes the Declaration of Independence by stating that “all men are born free and equal—endowed by their Creator with certain inalienable rights, among which are the right of enjoying and defending their lives and liberties, of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness.” Alluding to more the more recent past, Article 1, section 5 declared “this state shall ever remain a member of the American Union, and all attempts, from whatever source, or upon whatever pretext, to dissolve the said Union, shall be resisted with the whole power of the state.” Foreshadowing the spirit of the 14th Amendment to the U.S. Constitution, Article 1, section 39 states “distinction on account of race or color, in any case whatever, shall be prohibited, and all classes of citizens shall enjoy equally all common, public, legal and political advantages.”
With the text of the new constitution completed, the commander of the 2nd Military District issued orders for a public referendum to be held across the state on April 14th, 15th, and 16th. The registered voters of South Carolina were asked to accept or reject the new constitution—a decision never before or since offered to the citizens of this state. Since the majority of the constitutional delegates were Republicans, as was the majority of the electorate, the constitution was approved by a large margin. At the same time, voters were asked to select representatives to a new state legislature, and also to choose men to represent South Carolina in the United States Congress. By accomplishing these steps, South Carolina reached the half-way point on its mission to gain re-admission to the American Union.
The final stretch of the journey to realign South Carolina with the U.S. of A. unfolded in the summer of 1868. On May 22nd, the U.S. Congress passed an omnibus bill that acknowledged and ratified South Carolina’s new constitution. In late June, the state’s newly-elected General Assembly gathered in Columbia and prepared for business. Foremost among their duties, as specified by the Reconstruction Act of March 1867, was to ratify the 14th Amendment to the U.S. Constitution. The South Carolina House of Representatives accomplished this task on July 7th, followed by the state senate on July 9th. Governor Robert Kingston Scott then sent a letter to President Andrew Johnson in Washington, D.C., informing him that South Carolina had accomplished all of the admission requirements outlined by Congress fourteen months earlier. On Saturday, July 18th, 1868, President Johnson issued a proclamation acknowledging that South Carolina had indeed fulfilled the requirements established by the federal statute of 2 March 1867, and the state was hereby re-admitted to the American Union (see National Republican, 20 July 1868, for the text of the proclamation).
The Charleston newspapers greeted the news of South Carolina’s readmission with a mixed reaction. On the one hand, the era known as “Radical” or “Military” Reconstruction was finally over, and martial law gave way to reconstructed civil law. On the other hand, however, the white, conservative newspaper press expressed a great deal of anxiety about the future. Almost everything familiar and customary had been either swept aside or rendered impotent. The future was unclear, and resentment was percolating. Within a decade after the Constitution of 1868, this resentment rose to a fever pitch that undermined and eventually demolished the social progress outlined under “Radical Reconstruction.” Through violence and intimidation, the conservative Democratic Party returned to power in South Carolina in late 1876, and the United States Army soon withdrew its troops from the state. Racial segregation and discrimination crept back into our society, and a radically new state constitution, created in 1895, made segregation the law of the land. In 1896, the U.S. Supreme Court ruled in the case of Plessy v. Ferguson that racial segregation under the guise of “separate but equal” was legal. The hard work of Reconstruction had been undone.
In many ways, the short-lived South Carolina Constitution of 1868 was a remarkable achievement. Besides the “radical” changes I’ve already mentioned, this constitution also created our State Board of Education and the State Library. It retired the old parishes that once defined our electoral system in favor of our modern counties, and set us on the road to the robust county government that we enjoy today. The Constitution of 1868 also faced withering criticism from white conservatives, however, people who felt their opinions and interests were not represented at the convention. The newspapers lampooned it as the “Club House Constitution.” For some, the new state constitution was simply too radical. If you look at newspaper editorials published in Charleston and elsewhere in the state during that era, you’ll find plenty of bitter rhetoric against the new framework of government. The conservative backlash can be distilled down to a pair of related points that you’ll find repeated throughout the era of Reconstruction: conservatives resisted the notion that African-Americans were entitled to full citizenship (and “equal protection” under the law), and vigorously campaigned to deny African-Americans the right to vote.
The South Carolina Constitution of 1868 was not a perfect document, but it was the most democratic and equitable of the seven constitutions in the history of this state. The men who labored for fifty-three days to frame that document were fueled by generations of prayers and fervent hopes for a society that respected the rights of all people. Although that document was cast aside by a later generation, we can honor their legacy by remembering their achievement. On the afternoon of Friday, March 16th, 2018, a new historical marker will be unveiled near the site of the old Charleston Club House, on the west side of Meeting Street, just south of Broad, commemorating the 150th anniversary of the closing of the South Carolina Constitutional Convention of 1868. If you’re in the neighborhood that day, or any day, I encourage you to stop by and take a look. One hundred and fifty years later, their work continues.