Despite the Civil War, the
Gettysburg Address, federal
law, and the Civil War
Amendments, Reconstruction failed and the Black
Codes remained. The effort
could not permeate the implacable, violent, and enduring white Southern hostility
to a new birth of freedom.
The failure betrayed those
who died for “that cause
for which they gave the last
full measure of devotion.”
In the end, even the Republican Party betrayed Reconstruction.
In 1876, after much po-
litical bargaining, Republican
Rutherford B. Hayes sold
out Reconstruction and black people to buy 20 Southern electoral
votes to become President. He agreed to withdraw federal troops
from the South, which he did in 1877, ending what Republican
Presidents Lincoln and Grant strove to achieve. Reconstruction col-
From 1890 to 1908, Southern states undid most of Reconstruction’s achievements by disenfranchising and enslaving in all but
name black people and many poor whites.
The Supreme Court
The United States Supreme Court perpetuated the greatest betrayal
Arguably, Dred Scott, leaving aside Chief Justice Taney’s gratuitous dicta regarding black people, was correctly decided under the
Constitution of 1857.1 But how could the Court continue to read
the Constitution essentially the same way from the 1870s after the
Civil War Amendments?
With an obsessive adherence to an old notion of federalism and
blatant racism, the Court gutted the Civil War Amendments, turning a blind eye to the systematic disarming and disenfranchisement
of black people. Many a justice, even well-meaning ones, could not
ROBERT J. MCWHIRTER is a nationally and internationally known speaker and author on trial advocacy,
immigration law, and the history of the Bill of Rights. He is a Certified Specialist in Criminal Law with the State
Bar of Arizona and first-chair qualified to defend capital cases by the Arizona Supreme Court. He is the author
of BILLS, QUILLS, AND STILLS: AN ANNOTATED, ILLUSTRATED, AND ILLUMINATED HISTORY OF THE BILL OF RIGHTS (ABA 2015).
Four score and seven years ago our fathers brought forth
on this continent, a new nation, conceived in Liberty, and
dedicated to the proposition that all men are created equal.
The Gettysburg Address
Abraham Lincoln, Nov. 19, 1863
BY ROBERT J. MCWHIRTER
THE SUPREME COURT V. THE GET
How the United States Supreme Court Gutted the Fourteenth Amendment and
Political deal-maker Roscoe Conkling as
the devil arranges for Rutherford B. Hayes
to walk off with a plump-bottomed “Solid