This the Court considered good authority for the passage of the Reconstruction Acts. Most of the advocates of the acts based them upon this theory.
Now, upon that clause of Article IV., Section 4, of the Constitution which says: “The United States shall guarantee to every state in this Union a republican form of government,” the Federalist remarks:
It may possibly be asked whether [this clause] may not become a pretext for alterations in the state governments without the concurrence of the states themselves.... But the authority extends no further than to a guarantee [the Federalist’s italics] of a republican form of government, which supposes a pre-existing government of the form which is to be guaranteed.[75]
The intention of the clause, says the Federalist in the same paper, is simply to guard “against aristocratic or monarchic innovations.” To one not interested in establishing the constitutionality of the Reconstruction Acts, it seems indisputable that the clause is rightly interpreted by the Federalist. Story accepts this interpretation as a matter of course.[76] Cooley groups the clause with that which forbids the states to grant titles of nobility.[77] If this interpretation is correct, then the guarantee clause gives no authority for destroying a state government of a republican form and substituting another.
There is, however, a constitutional basis for the Reconstruction Acts. It is the war power of Congress.
If a section of the people of a stale rebel against the government, the resulting contest is not a war, in the sense of international law. But as it may assume the physical character of a war, so it may call into existence the rights and customs incident to war. Upon this principle the federal government acquired the rights of war in the contest of 1861-1865.[78] Now the rights of war do not end with military operations; one of these rights is the right of the victorious party, after an unconditional surrender, to occupy the territory of the defeated party, to govern or punish the people as it sees fit. If the United States government acquired the rights of war, this right was included. The close of a war is not simultaneous with the cessation of fighting. The surrender of the southern armies was an important incident in the civil war; it was not the end. If the federal government had the rights of war before this incident, it had them after.
The United States government might therefore say to the persons composing the military power which it had subdued: As the terms of war, you are to be governed by military government. If the persons against whom this sentence is assumed to have been pronounced formed the majority of the population of a state, one result of the sentence would be to suspend independent state government. The United States government might choose another punishment. It might say to the lately hostile persons: We forbid you to participate in the federal government. If the persons so sentenced form the majority of the population of a state, that state can send no representatives to Congress while the sentence remains. These sentences might be imposed permanently or only until such time as the people sentenced should fulfil certain demands—hold certain conventions, pass certain laws, adopt certain resolutions in certain ways. The federal government can thus effect through its war powers what it cannot effect through any power to interfere directly with a state government. It had no right to reconstruct the government of Maine in 1865, because Maine had no body of people over whom the federal government could exercise war powers. It had the right to reconstruct the government of Georgia, because nine-tenths of the people of Georgia were lawfully at its mercy as a conqueror.
Even if it be admitted, however, that the federal government had the power described, it may still be argued that the Reconstruction Acts are not legally justified. A conqueror has a right to govern a conquered people as he pleases and as long as he pleases; he also has a right to alter his mode of treatment and substitute another mode. But after he has imposed certain terms as final, after the requirements of these terms have been complied with, after he has restored the conquered people to their normal position and rights and has unmistakably terminated the relation of conqueror to conquered—then his rights of war are at an end. It may be argued that this was the case when the Reconstruction Acts were passed. It may be argued that in December, 1865, the federal government had, through the President, terminated its capacity as a conqueror, and could regain that capacity only by another war; that after that termination it had no more power to reconstruct Georgia than to reconstruct Maine.
This argument is irrefutable if we assume that the President had full power to act for the federal government in the disposition of the defeated Secessionists, and that therefore his acts of 1865 were the acts of the federal government. In case of an international war, which is closed by a treaty, the President may (if supported by the Senate) act finally for the federal government, and estop that government (so far as international law is concerned) from further action. But at the close of a civil war he cannot exercise his diplomatic power. The disposition of the defeated people in this case falls to the legislative branch of the government.
If the President had pardoned a great majority of the Secessionists, that fact perhaps might have legally estopped Congress from passing the Reconstruction Acts. These acts were a war punishment, and a pardon cuts off further punishment.[79] But the total number of persons who received amnesty under the proclamation of May 29, 1865, was 13,596,[80] which was of course only a small fraction of the Secessionist population.