OWorries about a new Civil War in the United States are misplaced because the Civil War never fully ended. This is essential knowledge for understanding the current political divisions, especially the recriminations surrounding the Supreme Court’s proposed leaked Roe decision, denying the constitutional protections of the right to abortion of a woman.
On abortion and many other issues, our nation is still largely divided along the battle lines of the Civil War: one party remains rooted in the Old Confederacy; the other draws its energy from the diversity of voters in northern and coastal states. Critics of federal power continue to resist protection of voting rights, women’s rights and access to education, while progressive supporters endorse national standards for voting, health and education . White supremacy permeates these divisions – skin color remains one of the best predictors of which side you are on.
The first opportunity to heal these divisions came after the surrender of the Confederacy in April 1865, but the war-weary Union failed to make the necessary commitments to change Southern attitudes, institutions, and beliefs. Responding to pressure from Northern families and businesses, the federal government reduced its military presence in the South, cut spending on law enforcement, and began to pardon secessionists and readmit their states back into the Union. The former Confederate states drafted new constitutions beginning in 1868, and they included elected African Americans for a short time, but quickly reverted to exclusive white rule with little repercussion from the federal government. Ten years after the Appomattox surrender, Southern leaders in Congress, state houses, and police forces looked the same as before the war.
Although there were major changes – in particular the end of slavery and the passage of constitutional amendments guaranteeing equal protection and the universal vote of men – the Confederates who returned from the battlefields were largely allowed to rule. They still owned most of the property and still wielded lethal force in the South. In the 1870s, former Confederates reinforced white rule as they excluded and attacked African Americans and other supporters of the federal government. Those who demanded fair treatment for vulnerable citizens were slandered, intimidated and sometimes killed. Hundreds of black and white men were lynched by organized mobs in the second half of the 19th century for daring to challenge the color line. Juries have routinely acquitted killers in cold blood.
Traditional Northern politicians, including forgettable presidents like Rutherford Hayes and James Garfield, tolerated violent white rule in the South because it promised political stability. They wouldn’t win votes in the region, but they wouldn’t face a rebellion either. In return for regional autonomy, southern politicians reluctantly accepted northern presidents after close and contested elections. Then they did everything they could to curtail presidential power, including cutting funding for federal law enforcement. The country fell into a long period of frozen division that, while peaceful on the surface, embodied systemic violence against African Americans, women, and many minorities.
This story is at the center of our current troubles. Customs and laws protecting the domination of the white minority prevent American democracy from pursuing the necessary reforms. States remain free to limit voting through old techniques, including hard-to-reach polling places, onerous registration and ID requirements, and increasing voter harassment. States have also perfected traditional practices of gerrymandering, drawing districts that deprive certain groups of any chance of representation. The promotion of these techniques, along with unsubstantiated claims of “voter fraud,” worked because they are familiar. Their history gives them legitimacy in many ways.
Our laws are indeed at the heart of the problem because they reflect this history. The Posse Comitatus Act, imposed on President Hayes by Southern politicians in 1878, severely limits the use of military power in the country. The law encouraged a strong presumption that federal forces would stay out of disputes over the election. It shouldn’t surprise us that while the Pentagon was quick to clear Lafayette Square of protesters in June 2020, it was slow to react when violent insurgents threatened the certification of the new president.
Certification was vulnerable in the first place because of the Voter Count Act of 1887 – a compromise drafted by Democrats and Republicans after a contested election in 1876 and two very close elections in 1880 and 1884. The law created a series of convoluted procedures designed to give more power to governors and state legislatures in determining electoral votes for the president. They count citizens’ votes, distribute voters, and then certify voters’ votes. Congress retained the ability to veto state ballots, but only with a majority in both houses. The weeks between Election Day and certification are filled with opportunities for various local and state officials to influence the outcome. This was precisely the intention of politicians in the 19th century, and it contributed to the protracted and violent row over the 2020 presidential election, despite Joe Biden’s clear victory.
Under the Fourteenth Amendment, elected officials who encourage the kind of insurgent violence witnessed on January 6, 2021 are subject to a permanent ban from holding office. Immediately after ratification in 1868, however, this law was undermined by blanket pardons granted to former Confederates by President Andrew Johnson. Elected officials who helped violent groups, like the Ku Klux Klan, attack federal institutions have never been held accountable.
This precedent surely encouraged some current members of Congress to believe that they could help efforts to stop the certification of Joe Biden’s presidency without penalty. Senator Ted Cruz, for example, invoked the history of white Southern resistance to majority rule when he called on his colleagues to delay certification of the 2020 presidential election and create a special commission to investigate the fraud lies that he and his allies were circulating. . He and many others continue to believe they can hold elected office and cause an insurrection.
These poisonous legacies are no small stains on American democracy; they are deep scars that jeopardize the health of the entire republic. They are easy to ignore in highly partisan debates and selfish efforts to glorify the nation, but they are obvious to anyone who carefully diagnoses our history. We cannot afford to censor the uncomfortable evidence of systematic exclusion and division. We must accept the evidence, recognize the scars and work to heal. It means changing laws and institutions to increase fairness for all citizens.
Historical calculation is a necessary medicine to strengthen democracy.
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