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The Consistency Of Lyman Trumbull and Its Meaning to American Constitutional Heritage

By Nathaniel Bates

The Thirteenth and Fourteenth Amendments transformed America as much as the Civil War did.1 Well-known Reconstruction era leaders such as Thaddeus Stevens, instrumental in securing the rights of the freedmen, have been credited with the revolution in civil rights that shook the foundations of American federalism and allowed millions of freed blacks to enjoy a battery of civil rights during the Reconstruction period.2 Lyman Trumbull has not been as well known an influence on Reconstruction as Thaddeus Stevens and the Abolitionists,3 yet he was instrumental in the crafting of the Thirteenth Amendment and the Civil Rights Act of 1866.4 His conception of the civil rights of citizens was eventually incorporated in to the language of the Fourteenth Amendment. However, the subsequent retreat of Lyman Trumbull from radicalism in the late Reconstruction period prejudiced a number of Radicals against him.5 Since Trumbull began to oppose those Reconstruction policies that tampered with federalism as it had been traditionally understood, namely those bearing on the political question of suffrage in the various States, he found himself branded as a reactionary who renounced the cause of civil rights. Yet, a study of the intellectual development of Lyman Trumbull sheds a far different light on his commitment to civil rights. Trumbull did not abandon a belief in the life, liberty, and due process for individuals even during the late Reconstruction period when he backed away from advocating for political rights. In fact, Lyman Trumbull remained consistent with a powerful sense of the civil rights of the individual throughout his life, even as he vacillated on political questions.

Lyman Trumbull did indeed vacillate on political questions. Lyman Trumbull, a key influence on Reconstruction era civil rights legislation who renounced Reconstruction as it grew increasingly radical, became counsel for labor leader Eugene Debs decades after Reconstruction when the Supreme Court decided that no civil rights had been violated in imprisoning Debs without a jury trial. Since he had taken conservative positions for over a decade, Trumbull surprised his fellow conservatives by a willingness to ally himself with Populists and socialists who challenged the new industrial order of the late nineteenth century. Lyman Trumbull was almost certainly the sole “conservative” on the defense team defending Eugene Debs. In 1895, as Debs stood before the Court hoping to have his conviction overturned in the landmark Supreme Court case, In re Debs, the labor leader had not yet converted to outright socialism.6 Yet, Debs remained a visible radical after he played a role in the defense of the Haymarket rioters.7 He unsettled the staid and those satisfied with the system as it was.8 A Federal court had imprisoned Debs for his having participated in the Pullman Strike in spite of a judicial order restraining the strike. The court held him in contempt, and imprisoned him without the benefit of jury. The defense team appealed to the Supreme Court to have the verdict overturned, and chose Lyman Trumbull to confront the Court with an appeal for due process.

Trumbull argued that the civil rights of Eugene Debs had been violated when he was imprisoned for what amounted to a criminal act without the benefit of a jury trial. Trumbull also denied the power of the Federal government to interfere with the strike given that it pertained to the commerce that was internal to the several States.9 The Court did not agree, and upheld the sentence of the lower federal court. This defeat was not unusual, but was symptomatic of a time in which the Supreme Court did not emphasize the Bill of Rights as a broad protection for individuals. The Court would not interpret the civil rights of individuals in a broad way until decades after the Gilded Age, when the Gitlow v. New York decision began the selective application of the Bill of Rights to the States, an application eventually known as the incorporation doctrine. Nor would the Court defer to Congress in decisions on economic matters until the landmark United States v. Carolene Products Co. decision rendered in 1938.10 Instead, the Court upheld late nineteenth century legal doctrines such as “liberty of contract”, and a belief in limited police powers for economic matters. These doctrines dominated the Court as it decided against labor in favor of capital, and it strongly influenced the law schools and Universities of the time.11

Eugene Debs lost his case, and one can only imagine that Lyman Trumbull looked on sadly while the verdict sustaining the conviction was read. The irony could not have been clearer. The understanding that Lyman Trumbull had of civil rights, that civil rights were the attributes of individuals and not of States or corporations, contrasted radically from the philosophy of the very Court charged with upholding a Fourteenth Amendment based primarily on the very Civil Rights Act Trumbull himself had authored three decades earlier. This Court crafted decisions that upheld a corporate social order rather than the due process of individuals. Lyman Trumbull, the aged counsel for the defense, was clearly out of step with that Court when he argued for a view of civil rights that was increasingly viewed as old-fashioned in a new age of industrialism and collective human endeavor.

In order to truly understand the significance of the confrontation between Trumbull and the Supreme Court, it is necessary to understand who Lyman Trumbull was and what his understanding of civil rights has meant to American Constitutional law. He began his intellectual development in an unlikely place for the future author of the Civil Rights Act of 1866. A full half-century before the Supreme Court ruled against Eugene Debs, Lyman Trumbull began his political career as a Jacksonian Democrat, a political faction unfriendly to the expansive government later advocated by socialists and Populists, although sharing their opposition to capitalist monopolies. A Connecticut Yankee born of a poor father, Trumbull received the best education, reading the great classics of ancient literature in their original languages.12 A free spirit in his youth, he wandered through the Southern States, experiencing the evils of slavery first hand.

Trumbull eventually settled in Illinois,13 where he entered a legal career that landed him on the Illinois Supreme Court. An admiring constituency elected Trumbull to Congress in 1854, and the Illinois legislature selected him to the Senate in 1855. He rose to power as a staunch follower of the decentralizing doctrines of the Jacksonian Democrats.14 However, Trumbull was also outspokenly opposed of slavery, a view that was consistent with the democratic principles professed by his Party, yet which cost him the support of those who would placate the conservative Hunker wing of the Democratic Party.15 Trumbull became an anti-Nebraska Democrat, of the faction opposed the expansion of slavery in the western territories. The resistance of Trumbull to Stephen Douglas and to the increasingly pro-slavery tendencies of his Party after the time of Jackson led him to leave the Democracy and to help organize the emerging Republican Party.16 Even as a Republican, Trumbull retained a belief in the minimal state favored by Jacksonians. Trumbull was an oddity in many respects, first a conscientious opponent of slavery who was also a Jacksonian Democrat, and then a Republican who clung to populist Jeffersonian economics.

The early career of Lyman Trumbull was paradoxical. His later development was even more mystifying. He could have easily become a racist, moderately pro-slavery influence given the large number of Southerners in Illinois, yet he chose instead to oppose slavery and become the conscience of the Senate. This paradox is made profoundly interesting when it is considered that Trumbull was racially conservative as late as 1859, two years before the Civil War.17 This very same Trumbull has also earned praise as a progressive compared to Abraham Lincoln by a number of historians who have considered the records of both men.18 Yet, there was a certain consistency in the positions taken by Lyman Trumbull. Trumbull believed in the egalitarian republicanism of the early Republicans, an egalitarianism that would shape his stand on civil rights after the Civil War.

Trumbull championed the constituency comprising the early Republican Party more effectively than either the Whigs or the Democrats could have.19 This constituency was comprised of ex-Whigs disaffected by the deference of Whig Party conservatives to slavery, Jacksonian “free soil” Democrats inspired by an egalitarian vision of white male equality, and a number of abolitionists whose vision of equality transcended the narrow limits of both camps. The Republicans represented industrialists, farmers, small businessmen, along with a few abolitionist lawyers and intellectuals from such towns as Boston and Concord willing to accommodate themselves to the racial conservatism of Lincoln and Trumbull. The perceived threat to liberty from the “Slave Power” made them receptive to the ideas of Trumbull and the Freesoilers. More than anything, most Republicans believed that they were taking a stand for civil and human rights against the onslaught of a slavery interest that was intent on using its power to dominate the Republic.

Even though the Republican Party was generally hostile to slavery, the Republican Party was not an abolitionist Party. Nor was Trumbull originally any type of abolitionist. The Civil War did not break out because of the insidious influence of “abolitionist” Lincoln or “black republican” Trumbull, since both of these men initially defined themselves as Unionists more than as advocates for emancipation. Rather, it began because of a secession movement led by Southern extremists, among them Edmund Ruffin and Jefferson Davis who perceived a loss of influence over national politics with the election of Abraham Lincoln to the Presidency. Southern extremists feared a loss of power that could have conceivably led to abolition. Ironically, it was their own actions that led conservatives such as Trumbull to advocate abolition. Trumbull went from being a Jacksonian minimalist to becoming the primary influence behind the Thirteenth Amendment that abolished slavery in a few short years. During the Civil War, he even exceeded Lincoln in his advocacy of forceful abolition.20

In some respects this shift was not so surprising, given that Trumbull was always forceful in his opposition to slavery, even during his earlier years. During both of their earlier political careers, Lyman Trumbull and Lincoln had both been against indenture as incompatible with the Northwest Ordinance of 1787 that abolished slavery in all Northwest Territories, an area including what would later become Illinois. Yet, it was Lyman Trumbull who forcefully advocated the rights of blacks in Illinois in the decades before the formation of the Republican Party in spite of his racially timid tendancies.21 It was Trumbull who, in 1864, during the dark days of the Civil War, introduced the Bill that became the Thirteenth Amendment to the Constitution. Trumbull pushed for emancipation in spite of the tepid approach that Lincoln initially brought to the subject of emancipation. The efforts of Trumbull to pass the Thirteenth Amendment enshrined Lincoln’s Emancipation Proclamation in to the Constitutional foundations of the nation, where it could not be removed by political expediency.

Trumbull introduced a bill to become the Thirteenth Amendment after several unsuccessful attempts, the final one modeled on the very 1787 Northwest Ordinance that he so tirelessly campaigned to uphold. In part, he endeavored to constitutionally legitimate the Emancipation Proclamation, a legitimacy that would have become questionable once the Union was restored without a change in the organic law of the country that had so far permitted slavery.22 However, the new vision of Lyman Trumbull went beyond simply legitimizing Lincoln. He attempted to radically alter the power of Congress in order to enforce the human rights of the black slave. In doing so, Trumbull initially conceded what few Radicals were willing to concede. Unlike the radical abolitionists, he admitted that Congress had no power to abolish slavery without an amendment. Trumbull admitted that Congressional action was unconstitutional without the additional powers afforded by a Constitutional amendment, a position that was in alignment with that of Republicans who wanted an Amendment in order to abolish slavery in a permanent manner in order to avoid the charge of Congressional over-reach.23 Trumbull understood that the powers of Congress were inadequate without an Amendment and that slavery might even re-establish itself without one. He took action through a Constitutional amendment, one that eventually passed and made certain that slavery would no longer raise its head in the reunified Republic.

In introducing the Thirteenth Amendment, Trumbull aligned himself with Charles Sumner and the Radical faction. Like the Radicals, Trumbull desired that Lincoln act faster to emancipate more slaves. However, the cautious Constitutional conservatism of Lyman Trumbull contrasted with the radicalism of Charles Sumner on one major point. Unlike Trumbull, Sumner was not willing to concede that Congress had no power to abolish slavery without an amendment. In maintaining this position, Sumner stood in the tradition of such ante-bellum radicals as Lysander Spooner, who held that slavery was already unconstitutional. Sumner held to an expansive view of the powers of Congress under the Constitution, just as many antebellum abolitionists, and even some Founding Fathers, believed that Congress had the power to emancipate slaves anywhere in the Union.24

By contrast, Trumbull believed in a view of the powers of Congress that was initially tame. It was rooted in the cautious strict constructionism that distinguished Trumbull from the Radicals. Yet, at the same time that Trumbull respected traditional federalism, his skillful introduction of the Thirteenth Amendment at the right time, during the middle of a slaveholder rebellion that had turned the free North against slavery as the root of the treason, made all of the difference for his country. It also made all of the difference to his own perception of what defined the powers of Congress. After the passage of the Thirteenth Amendment, Trumbull underwent a revolution in his own views on federalism that would transform his thinking on civil rights.

For Trumbull, the end of slavery, affected by the passage of the Thirteenth Amendment, gave Congress the power to make the freedmen full citizens. This was a substantial alteration of a tame view of the powers of Congress he had held only a few years earlier. Once the Thirteenth Amendment abolished slavery, Trumbull reasoned that black people were already citizens. Congress needed but to recognize that fact. Even more astonishingly, Trumbull threw aside States Rights minimalism when he also claimed that Congress held the power to ensure the civil rights of citizens even against the wishes of State Governments. Freedmen would have the right of life, liberty, the same power to enter in to contract as any white citizen possessed, and even the right to keep and to bear arms.25 Lyman Trumbull introduced and campaigned for a Civil Rights bill that protected blacks against the abuses they were suffering at the hands of Southern State Governments under post-bellum “Black Codes”, introduced as a form of indenture to replace slavery.

The degree to which Trumbull, whose reticence to make full citizens of blacks was evident even as late as 1859, deviated from traditional federalism during the early Reconstruction period was astonishing. Before the twentieth century, even white Americans were not seen as being protected by the Bill of Rights except at the Federal level. Yet, by 1866, Trumbull advanced a doctrine that Congress possessed the power to ensure the Civil Rights of any citizen of the Republic, regardless of color. Acting on this doctrine, Trumbull introduced the Civil Rights Act that would indeed aim to protect the Civil Rights of all citizens of the Republic. In this Act, any actor who violated the right of any freedman to engage in contract, inherit property, give evidence in court, and enjoy due process under law would face criminal penalties. This was the first act of the kind that empowered the Federal government to grossly restrain the State governments, a Constitutional innovation as great as the abolition of slavery. Given its radicalism, the Civil Rights Act that was so expansive would have to face a horrendous battle in the very Senate where Lyman Trumbull sat, a battle over the powers of Congress to affect the changes in American society that were increasingly seen by Northerners as the necessary fruits of the Civil War itself.

It was not long after Lyman Trumbull introduced the Civil Rights Act that he immediately faced his greatest challenge. Senator Peter Van Winkle of West Virginia challenged the power of Congress to make citizens of inhabitants of the United States who were not originally foreigners, a use of the power of naturalization that was contested when applied to native born blacks. Trumbull replied that the abolition of slavery had voided any barrier to granting blacks citizenship. He argued that abolition had effectively granted black people citizenship and that the Civil Rights Act merely recognized this new state of affairs.26 The Constitution conferred upon Congress the full power to provide for uniform rules of naturalization, and since slavery had been abolished the branch of government that could right the wrongs of the past was Congress alone.27 This exchange between Senators, neither of whom desired anything less than a full defense of Constitutional liberty as each understood it, was only the beginning of a struggle that would reverberate throughout history long after all of the parties involved were buried in the political graveyard.

Lyman Trumbull understood that he had a full fight on his hands. His idealistic vision of citizenship would face stiff resistance from those who were adept at legal argument. A lawyer himself, he naturally understood the ability of lawyers to create objections, and then to convince themselves to believe them. When Senator Van Winkle objected to the Civil Rights Act, he had the full weight of current Tenth Amendment doctrines behind him. One of the primary objections to the bill was the fact that it extended the powers of Congress over naturalization to native inhabitants of the land, who had traditionally been naturalized under State constitutions and not the laws of Congress. Trumbull responded as deftly to this objection as he could, mentioning the naturalization of Stockbridge Indians as an example of a mass naturalization of foreigners; yet he must have understood that his bill was different. It would have centralized naturalization procedures, disallowing the States from engaging in naturalization. Some opponents such as Senator Eli Saulsbury of Delaware even thought that State naturalization was a privilege that was retained from the colonial period.28

The Civil Rights Act did not simply naturalize the native born, nor were the opponents of the Act who constantly cited the doctrine that Congress had no power to naturalize the free inhabitants of the several States entirely honest in their reasons for opposing the Civil Rights Act. The Civil Rights Act assumed a truly expansive power on the part of Congress, yet it rested on more than just a broad view of the powers of Congress to naturalize citizens. It rested on a consolidationist view of the powers of Congress that raised the specter of a Roman style tyranny for opponents, one initially established under the premise that it was ensuring the rights of the people. Just as the Caesars of old Rome destroyed the power of the aristocracy in the name of democracy, appealing to the Tribune of the Plebs for power against the wealthy, so did conservatives fear an ultra-democratic Congress appealing to the base instincts of the mob against reason and common sense.29 Regardless of whether the fear was reasonable or not, it was real in the minds of Senators schooled in the classical thought of ancient Greece and Rome.

Lyman Trumbull could not have mistaken what the real objections of his opponents were. He was no friend of demagoguery, nor was he a friend of the unprincipled and unbridled democracy that conservatives believed had destroyed ancient Rome. Trumbull assured the conservatives in Congress that he was not a radical. He distinguished between civil rights and political rights such as suffrage, a distinction that would become more prevalent to his thinking in the years ahead. Suffrage was not a civil right according to Lyman Trumbull. Rather, suffrage was a political right whose exercise would still be regulated at the State level.30 Although Trumbull would later temporarily embrace universal male suffrage, he knew that such a notion would raise the specter of the worst fears of “democratic despotism” still present among nineteenth century conservatives and many classical liberals, a fear of mob rule that Trumbull himself shared. He later supported the Fifteenth Amendment, yet he did not give suffrage the effort the he gave the protection of civil rights and natural liberties.

The vehemence of the conservative counter-attack against the Civil Rights Act must be understood against the backdrop of a number of historical factors. The aforementioned fear of democratic despotism was not unreasonable. Tyrannies had arisen from the Tribune of the Plebs in the ancient Roman Republic, a Republic whose political evolution has often paralleled our own. The conservatives positioned themselves as cautious defenders of Republican liberty against unbridled democracy, a function that conservatives should play in any balanced system of government. However, the conservatives were highly selective in their defense of balanced Republican government. The Constitution clearly stipulated that Congress would hold the power of naturalization in Article One Section Eight, contrary to their claim that the States alone held that power. The Federalist Papers also spoke directly to the point when it held that Congress and not the States determined naturalization.31 Additionally, nothing was ever stated in the Constitution or the Federalist Papers about America having been founded as a “White Democracy”, a refrain among some in the thirty-ninth Congress.32

The notion that America was founded as a “White Democracy” was common among racists in the nineteenth and twentieth centuries. Sadly, it is also a common fallacy among some in modern times who would call the Founding Fathers to task over slavery and other injustices that most of them had very little control over.33 In fact, the views of the Founding Fathers were far more nuanced than much of what is represented by their modern detractors. The Constitutional Convention discussed slavery, and some Founders did indeed defend slavery in practice, though never in theory. Race was almost never mentioned as a criterion in the Constitutional debate over slavery, with the ironic exception of a few such as George Mason who attacked slavery in part because the institution excluded white labor. None of those who attended the Constitutional Convention defended slavery on any kind of racial basis, and there was no reference to “White Democracy” by any of the participants in the debate.34 Additionally, blacks were enfranchised citizens of the various States during the time in which the Constitution was ratified, and there was no discussion of them being State citizens only.

In fact, even the question of whether citizenship was a State affair only could be questioned from a Constitutional perspective. In spite of the Barron v. Baltimore decision restricting the Fifth Amendment to the Federal government, 35 ante-bellum legal scholarship had often held that the Bill of Rights did hold some protections against the States. Ironically, much of the effort to apply the Fifth Amendment to the States originally came from pro-slavery legal scholars afraid of Abolitionists controlling Northern States and nullifying any claim of property rights in escaped slaves. Abolitionist opinion had long held that slavery was under the power of Congress to regulate and not personal property immune from State control. Some ante-bellum abolitionists even claimed that slavery was unconstitutional under the provisions of the ten amendments of the Bill of Rights.36 While we cannot prove conclusively that the advocates of the Civil Rights Act were correct due to “original intent”, we can demonstrate that their opponents were highly selective in their readings of past Constitutional thought. The fear of social revolution was palpable enough for them to react defensively, and to reach for the best intellectual defenses that they could muster against the perceived threat of Caesarism in the name of liberty.

Ironically, the actual act of Caesarism that so offended the Senators and Congressmen of the thirty-ninth Congress came not from the advocates of the Civil Rights Act. Rather, it came from the traditional enemy of Legislative power, the Executive Branch of Government. The Civil Rights Act triumphed in Congress, only to face the veto pen of President Johnson. President Johnson cited many reasons for choosing to veto the Civil Rights Act, chief among them being that it claimed a power for Congress to naturalize the free inhabitants of the several States and to make them State citizens. This power presumably lay with the several States. 37 President Johnson revealed his deeper motives when he decried the Act as one of discrimination against foreigners who must wait for a period before being naturalized as citizens while blacks were automatically made citizens. Finally, President Johnson delivered the final faux pas in an age of increasing egalitarianism by boldly stating that subordination was the preferred means of preserving the relationship between capital and labor. This notion implicitly insulted white as well as black labor. Congress had to respond, and it did.

The Radicals in Congress were furious with Andrew Johnson. They quickly marshaled enough votes among erstwhile moderates to override the veto of the Civil Rights Act. Lyman Trumbull, the primary influence behind the Civil Rights Act, was stunned by the behavior of Johnson. Johnson had previously been thought of as sympathetic to the Radicals. Many radical abolitionists believed that Johnson would be more radical than the moderate Lincoln. Trumbull himself believed that Johnson was a man of reason who could be worked with, and was promptly disappointed. Johnson was indeed hostile to the Southern aristocracy, as the Radicals had hoped. Yet, his hostility was actually a hostility predicated on the economic and social interests of the yeomanry. It was not a racial radicalism, or a radicalism that demonstrated any kind of sympathy with the slaves or the freed blacks. Johnson demonstrated a profound enough traditionalism when it came to blacks, and by implication white labor. Radicals in Congress believed that they had to act in defense of the social revolution that they felt was necessary to truly construct a more perfect union. Enough moderate Republicans joined the Radicals in horror and mobilized to override the veto, and moved for an impeachment process to promptly commence. 38

Decades before the Radical Republicans impeached President Johnson, the original American revolutionaries had attempted to form a more perfect union. The generation of the Revolution and the Constitutional Convention was schooled in the writings of the philosophers of the Enlightenment, philosophers distrustful enough of kings and rulers to desire Constitutional limitations on their power, including the power of impeachment when the Executive Branch violated the Constitution. However, the boundaries of what defined just cause for impeachment were not directly given in the Constitution of 1787. For many in Congress, the very perfidy of Johnson in vetoing the Civil Rights Act and in obstructing efforts at Reconstruction in the South by violating the Tenure of Office Act constituted grounds for impeachment.39 In essence, it could be argued that Johnson was being impeached for highly political reasons that were constitutionally vague. Ultimately, it was the duty of the Senate, then seen as a bastion of staid politics, to decide whether radicalism had exceeded its bounds in impeaching the Executive for reasons that were political in nature.

Lyman Trumbull sat in the very Senate that would decide the fate of the President. Trumbull had established his credentials as a strict Constitutionalist during the Civil War. He attempted to temper the use of arbitrary arrests by the Lincoln Administration, holding that the Constitution still applied even in times of war or rebellion.40 Trumbull feared pure mob rule as much as any conservative. He demonstrated this cautious tendency by voting to acquit President Johnson. His vote for acquittal was the beginning of a breach with the Republicans that would eventually land Trumbull in the company of a number of renegades, among them the Liberal Republican Reformers. Yet, during the time of Reconstruction, Trumbull still considered himself a loyal Republican even when he acquitted President Johnson. He did not believe himself disloyal to his Party, rather loyal to freedom under law.

In the mind of Trumbull there was no contradiction between his vote for acquittal and his stand on Civil Rights. The Lyman Trumbull who was anathematized by Republican Radicals for having betrayed the Republican Party by voting for acquittal was the same Lyman Trumbull who stood forcefully for the Civil Rights Act that would serve as the inspiration for the Fourteenth Amendment. Nor did he consider the Fourteenth Amendment a radical innovation. In the mind of Lyman Trumbull, the Fourteenth Amendment simply codified a power already granted to Congress under the Constitution, a power that had to be at once protected against the assaults of those who would hamper Reconstruction, and at the same time tempered against Jacobin Radicals whom Trumbull considered to be rash in their judgments.

Immediately preceding the Impeachment crisis, Trumbull and the Radicals had agreed on one common goal, the attempt to constitutionally validate the Civil Rights Act and radical Reconstruction. In understanding the motives of Lyman Trumbull, it must be understood that even as a Jacksonian Constitutionalist Lyman Trumbull could not be termed a “strict constructionist”. He did not believe that the Tenth Amendment strictly limited the powers of Congress to certain set functions. He believed that Congress already possessed the power to broadly enforce Civil Rights, and that the Fourteenth Amendment simply declared a power granted under the Thirteenth Amendment.41 In that respect, Trumbull and the Radicals agreed. Contrary to his stand in the debates over the Thirteenth Amendment, during which Trumbull had denied the power of Congress to act against slavery without Constitutional authorization, Trumbull did not see the radical and revolutionary Fourteenth Amendment, praised and decried as the French Revolution in American politics, as terribly revolutionary. He believed that he was defending the existing powers of Congress already granted by the Thirteenth Amendment. Indeed, the same Lyman Trumbull who acted as a conservative in the spring of 1868 by voting for acquittal had previously voted for an expanded view of civil rights without considering himself inconsistent. In his own mind, Trumbull was far from inconsistent. In his own mind he was simply a Constitutionalist.

It was on the fine points of what defined suffrage that separated Trumbull from the opponents of both the Civil Rights Act and the Fourteenth Amendment. The difference could not have been clearer. Evidence for Trumbull’s ambivalence on the suffrage question showed up early in the debates over the Reconstruction Amendments. The specter of Indian enfranchisement raised during the debate over the Fourteenth Amendment forced Trumbull to deftly maneuver himself between those who would deny the assimilated Indian any kind of rights of citizenship and those who would forcibly assimilate all Indians. Indeed, the Fourteenth Amendment declared that all native born inhabitants were citizens of the United States, excluding “Indians not taxed”. The question was raised as to whether this provision intended to include propertied Indians as citizens while excluding those Indians who were unpropertied. It was at this point that Trumbull sounded a note of egalitarian thinking that was notably pragmatic in its recognition of the reality of multiple institutions of sovereignty in the United States. Yet, it was also on that note that Trumbull demonstrated a respect for the limits of Federal power over Indian tribes in the matter of citizenship, foreshadowing his later respect for the States in the matter of suffrage.

Trumbull reminded the Senators that Indians who were not assimilated lived under tribal governments, governments still largely recognized as sovereign at that time. The Fourteenth Amendment would not exclude Indians on the basis of property. Instead, it would only exclude the Indians who were still subject to tribal authority. It implicitly included those Indians who were assimilated in to American society, those who were potentially subject to taxation should they accumulate property.42 Hence, the Fourteenth Amendment did not include a property qualification, a relic of past exclusion of the basis of class that had largely been abandoned by the early nineteenth century. Trumbull avoided a crucial trap in which would he either have to deny civil rights for assimilated Indians or forcibly assimilate all Indians with his swift skill at Constitutional argument. There was a consistency in Lyman Trumbull’s notion of Indian relations that would be sadly lacking in later decades as the nineteenth century came to a close, but one that uneasily foreshadowed his later split with Radicals on the question of what defined political inclusion when the question of suffrage went beyond the tribes to the States within the Union itself.

During the 1870’s, Trumbull reacted against the corruption he found in the new industrial society by moving toward the conservative end of he spectrum. It was at this time that his moral and political evolution was most problematic. After Trumbull voted to acquit President Johnson, his growing split with his own Party eventually led him to join the Liberal Republicans, a conservative political faction opposed to corruption in the Grant Administration and to continual occupation of the South by Union forces in the name of guaranteeing suffrage for black citizens. It would appear as though Lyman Trumbull had suddenly switched sides, abandoning his defense of the voting rights of freedmen. He even opposed a controversial Klu Klux Klan bill that would have protected the rights of black people in the South to vote. Opposition to this bill signified a severe break with the Radicals who were pushing for just such a bill to curb the abuses of the Southern “Redeemers”.

In defense of his newfound conservatism, Trumbull reiterated his earlier argument that the “privileges and immunities” clause in the Civil Rights Act and the Fourteenth Amendment applied only to civil rights and not political rights. Suffrage was not a right of citizenship, Trumbull reasoned, a position that is problematic today but was not entirely out of step with nineteenth century political theory. Women were citizens, after all, with all of the privileges and immunities of citizenship, yet Trumbull noted that they did not vote.43 Rather, the question of the right to vote was regulated by State constitutions and not by Congress even after the passage of the Fourteenth Amendment. When Trumbull made this argument in favor of a restricted Fourteenth Amendment, the words being those of someone who had originally defined what “civil rights” meant, it was a major setback for Radicals that could fairly be called a betrayal.44

However, in assessing Trumbull’s legacy we have to consider the complexity of his thought and the evolution of his thought that was rooted in nineteenth century caution and yet which was not entirely bound by it. Although Trumbull took very little part in the actual debates over the Fourteenth Amendment, he was instrumental in constructing the Civil Rights Act upon which it was modeled. We cannot say that his will constituted any kind of “original intent”. So many voices and perspectives entered in to the discussion over how civil rights were to be defined that citing Lyman Trumbull to the detriment of the others would be unjust. What can be determined is that Lyman Trumbull, a conservative Jacksonian who deferred to the States in many issues, including a broad deference to State Constitutions on issues of suffrage, favored an understanding of civil rights that was national in its scope. This was a position that he never formally renounced. It was certainly a position that he always shared with his opponents among the Radicals, even when they became increasingly exasperated with Trumbull and his cautious approach toward protecting the political rights of black citizens.

Trumbull never renounced his efforts in favor of the Civil Rights Act or his participation in designing the Fourteenth Amendment during the 1870’s. This is a key point in understanding his legacy. Unfortunately, his deference to the States on issues of political rights, and his obstinate refusal to consider the position that blacks needed Federal protection due to the peculiarities of their experience in America, drove Radicals away from him. It was not long before his move toward the Liberal Republicans drove away most of his Republican constituents as well. Eventually, Trumbull lost the support of the elected Republicans in the Illinois Legislature. He was not chosen for the Senate again in 1872, ending a long career in the Senate that helped to define the meaning of civil rights in Constitutional jurisprudence.

In 1872, the Illinois Legislature elected Richard Oglesby over Lyman Trumbull, who then left the Senate gracefully. Trumbull rounded off the odyssey of his political career by returning to the Democratic Party from which he began his runs for Office.45 He enjoyed a career in law, and the respect of many. Trumbull had an indirect hand in the compromise of 1877, attempting to win the Presidency for Democratic candidate Samuel Tilden instead of Rutherford Hayes. While he failed, his efforts helped to effectively end the very Reconstruction that he had pushed for in the beginning. After the 1877 compromise between the North and South settled the question of the Presidency, the Fourteenth Amendment became increasingly eviscerated by a series of legal decisions that rested on judicial doctrines narrowing the scope of the Fourteenth Amendment. In the Civil Rights Cases, the Court ruled that Congress had limited power to enforce equal rights. Eventually, the coup d’grace would be delivered to the hopes of racial liberals with the Plessy v. Ferguson decision, ruling that the Fourteenth Amendment was no protection against racial segregation on board trains.

These decisions rested on the “State Action” doctrine, holding that only a willful action of State Governments to deprive an individual of his or her Constitutional protections constituted an infringement of civil rights.46 The Court would not empower the national government to ensure civil rights with any broad reach. Astonishingly, at the same time that the State Action doctrine held sway on matters of civil rights, the very Fourteenth Amendment that had ceased to protect individuals against State governments found itself protecting corporations against State regulation. An age of increasing conservatism set in.

This is the point at which Lyman Trumbull traditionally disappears from history. The summary judgment is made that he became a reactionary, one of the worst epithets in modern progressive circles. The real story of the evolution of Lyman Trumbull is more complex, however, than the simplistic label of “reactionary”. On the one hand, the Lyman Trumbull of the Liberal Republican period did abandon one key aspect of liberal reform that he had at least partially gone along with in the debates over the Fourteenth Amendment, that of universal suffrage. While he initially went along with the Fifteenth Amendment, which forbade discrimination in voting on the basis of race, Trumbull’s embrace of universal male suffrage had always been temporary at best. During his Liberal Republican period Trumbull sacrificed political rights while retaining a belief in liberty and due process. His memory of his earlier temporary embrace of radicalism, in which he envisioned black Americans as full American citizens, became increasingly hazy in later years as the memory of politicians often becomes hazy in uncomfortable situations.

Yet, on the other hand, even though Trumbull would eventually embrace a doctrine akin to the “State Action” doctrine, he never wavered in a broad philosophical defense of civil rights, only the federal guarantee of political rights that he momentarily embraced after the Civil War.47 Trumbull justified his opposition to the Klu Klux Klan bill on the spurious basis that it presumably created a special class of citizens. Even at that point, however, Trumbull did not repudiate a theoretical belief in federally protected civil rights.48 Even his narrowing of the Fourteenth Amendment never came close to the narrowing that the Supreme Court gave the Amendment in 1883 with the Civil Rights Cases, in which the Congress was prevented from enforcing Civil Rights. Trumbull has been mislabeled as a reactionary when, in fact, he was out of step with the entire political spectrum as defined in the Gilded Age. He was not a reactionary or a conservative as the term was understood in the late nineteenth century. Instead, Trumbull stood firm for the liberalism and limited Constitutionalism of early nineteenth century Jacksonian American long after it enjoyed popular support anywhere on the political spectrum.

Trumbull demonstrated his early nineteenth century individualism in interesting ways. Indeed, not all of his causes were “conservative” in nature. Astonishingly, in his old age Trumbull even took the case of Eugene Debs, a radical socialist imprisoned for contempt of Court in 1895. The radical Debs had been imprisoned without a jury trial simply on the basis of a contempt order, a case of judicial over-reach that elicited Trumbull’s constitutionalist ire. His acceptance of this case made for an astonishing departure from what would ordinarily be considered conservative philosophy. From the sympathy that Trumbull maintained for socialist and Populist causes, a case should be made for a sophisticated understanding of the devotion of Lyman Trumbull to civil rights, a commitment that did not entirely wane even after he made the moral compromises he made during the late Reconstruction period.

Trumbull was asked to defend Debs in his appeal process before the Supreme Court. Debs was sentenced to prison for contempt of court. Trumbull compiled a brief that rested on strict constitutionalist grounds. He claimed that punishing Debs without the benefit of a jury trial was unconstitutional, denying that the power of a Judge to issue a contempt order could be used so broadly as to convict Debs of a crime without a Jury. Trumbull built his entire case on the grounds that due process had been violated, a due process that Trumbull himself had helped to conceptually refine in 1866.49 Yet, more overarching than any discussion of legal arguments in determining the decision by Trumbull to defend Debs was his traditional distrust of monopolies and their insidious influence over government, an antagonism held by traditional Jacksonians as much as by later populists. For Trumbull, monopolies threatened the independence that allowed the libertarian America that he favored most to continue.

Ironically, these monopolies attempted to protect themselves by invoking the very civil rights that Trumbull had helped to construct during the thirty-ninth Congress. Trumbull himself was never in agreement with those who would use the Fourteenth Amendment to uphold such laissez-faire doctrines as “liberty of contract” in favor of corporations while denying civil rights to persons. Ironically, their arguments were effective with the Court while his arguments, the arguments of someone who had been present during the debates in the thirty-ninth Congress, were not effective in the Debs case. The Santa Clara County v. Southern Pacific Railroad decision made sure that States had to respect the rights of corporations as persons, during the same period of history that Trumbull could not argue those protections for his client Eugene Debs.50 Well in to the twentieth century, the Court would rule that State laws protecting labor were unconstitutional because they interfered with the presumed rights of corporations to do business unencumbered by State governments whose police powers had been limited by the Fourteenth Amendment.51 Indeed, the late nineteenth century Supreme Court made these decisions in the name of the Fourteenth Amendment. As Trumbull undoubtedly would have noted, no extensive discussions of economic theory ever appeared in the Congressional debates over the Amendment.

Gilded Age legal scholars redefined the Constitution according to their own doctrines, without any deference to the grand old men who had shaped the Fourteenth Amendment, men such as Trumbull himself. One can imagine that Trumbull took the case of Debs, in part, to strike back at this lack of deference. In addition to personal motives, Trumbull acted on Jacksonian instincts when he attacked Eastern centers of finance and centralized monopoly. Trumbull remained consistent with the anti-establishment politics of his youth. He was no more a conservative than he was a radical, merely Constitutionalist if in a somewhat chiliastic sense. The populist Trumbull astonished conservatives who thought he was one of them, yet who ultimately could not understand him. He did not see himself as a conservative but as a Constitutionalist. He remained one until his death, which came shortly after he lost In re Debs.

Debs lost his last case as the Court dared to deliver a Constitutional lecture to the “Grand Old Man of America”.52 The Court decided the case largely on the basis of the Interstate Commerce Clause, as well as the interesting claim that they were simply enforcing the will of Congress in enforcing the Sherman Anti-Trust Act, and not on any abstract Constitutional theory. However, the laissez-faire philosophy upon which much of the late nineteenth century Supreme Court rested its decisions upon premised itself on an interpretation of the Fourteenth Amendment that was oriented toward the protection of corporations more than persons, an orientation evident in the Court’s decision.53 The questions that Trumbull raised about due process and conviction of a crime without a jury trial were entirely sidestepped while courts treated corporations as legal persons. Trumbull would not have disagreed with the notion that property was essential to liberty, yet he never went as far in this doctrine as did Court conservatives.54

While the Court continued to define its rulings by legal doctrines shaped by nineteenth century scientific beliefs, Trumbull remained consistent with classical notions of civil rights that were increasingly viewed as dated in an age of collective human endeavor. Trumbull lived and died within a consistency that was largely a product of his nineteenth century upbringing and his Puritan heritage. Lyman Trumbull represented many of the dominant trends of the eighteenth and early nineteenth centuries. He adhered to a belief in life, liberty and due process that focused on individuals. Corporations and governments that attempted to usurp these guarantees, or to redirect them away from the individual, were anathema to Trumbull. Trumbull defended the radical Eugene Debs with vehemence, defying “conservatives” who had actually ceased being conservatives in order to become defenders of a corporate order that subordinated individual freedom to the power of the conglomerate.

Trumbull never made it to the twentieth century, yet his commitment to personal rights would make a come back in the middle twentieth century. The Court would eventually undo some of its decisions and uphold individual rights against both the States and the Federal government. Unfortunately, the Constitutional revolutions of the middle twentieth century never bore the name of Lyman Trumbull. He has largely disappeared from history, and has not been given credit for the Constitutional changes that expanded the rights of citizenship. However, the Thirteenth Amendment and the Civil Rights Act that inspired the Fourteenth Amendment each provided Constitutional justification for much of the civil rights revolutions of the mid twentieth century. In this respect, Trumbull has enjoyed a posthumous triumph. This triumph is fragile while civil rights are continually undermined in the name of all manner of evils. The Congress, the Courts and the Presidency have never been as committed to the defense of civil rights as Lyman Trumbull was. If the memory of Lyman Trumbull means anything, it should inspire brave men in Congress to stand firm in defense of traditional freedom even while pressures mount against it from a variety of constituencies. Just as Lyman Trumbull defied his own Party when principle was at stake, so modern Senators and members of Congress should stand firm when freedom is bartered away in the name of “national security.” His consistency should inspire modern politicians who are extremely eager to downplay principle for expediency. If Trumbull can inspire modern leaders, he will have outlived his century and found a home in a world very different than the one he lived in, a world in need of his philosophical consistency in an age of relativism and lack of bearing.

Bibliography

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