As I mentioned in a previous blog post, I’m fascinated about the matter of Robert E. Lee’s legacy in general, and the story of what happened to his status as an American citizen in particular.
The subject of Lee’s American citizenship status might just be a side note in how he is remembered, and how he endures as a celebrated figure in national memory. But it’s a detail that I believe has a lot to say about how the Civil War has shaped and continues to shape our culture and political discourse.
As a jumping off point for this discussion, consider this statement:
In 1868, Robert E. Lee was legally stripped of his U.S. citizenship.
Members of future generations of Americans thought so, and could not abide this. Many saw it as an insult and injustice to a singular American hero. And so they did something about it. Something, legally speaking, that was decidedly extraordinary and fully unprecedented — something which had never been done before in all of American history.
Now, let’s examine exactly what is meant by Lee’s having been deprived of his American citizenship.
In the aftermath of the Civil War, Americans who had fought for the Confederacy — or materially given the CSA “aid and comfort” — were temporarily stripped of their ability to vote. This was carried into law by virtue of Section 2 of the 14th Amendment to the U.S. Constitution, which went into affect in July of 1868.
These “insurrectionists” were also stripped of another key political power. They were forbidden to hold any office, elected or appointed.
This disqualification applied across the broad spectrum of U.S. military ranks, federal government positions, and even any state office. This ban was established under the 14th Amendment’s Section 3 and made legally enforceable, by Congress, under Section 5. (The 14th Amendment’s other sections have thunderously altered American law, but the Civil War sections are now regarded historical curiosities.)
You can read about why the Lincoln administration and the 39th U.S. Congress felt they needed to take these steps on page 178 in my book, in the “…Great Task Remaining Before Us” chapter.
These two political “disabilities,” in a nutshell, were the only lasting punitive consequences that the federal government imposed on most members of the Confederate army and government. (True: many tracts of land and other property had been seized by the United States during the course of the war. But those were almost universally restored between 1865 and 1868 by Lincoln’s successor, Andrew Johnson, who liberally wielded his pardon powers reserved to him under Article II of the U.S. Constitution. However, the 14th Amendment had spelled out that only Congress had the power to restore political powers to participants in the rebellion. So Johnson’s pardons, however lenient, were not sufficient to restore all lost privileges.)
Despite having planned and supervised a campaign that resulted in thousands upon thousands of casualties to soldiers in the U.S. Army, Robert E. Lee walked away from Appomattox a free man[i].
To me, this is astonishing.
When in 1787 the Framers of the Constitution set out to form a radically new government for the newly independent American colonies, the matters of courts and justice were important ones. But the Framers did not have the time to work out a whole body of federal law that would pertain to the commission of crimes.
Largely, all the Framers could do was empower Congress to establish specific crimes and punishments at some later date. And it seems the Framers imagined that crimes against the federal government would not encompass much more than piracy, counterfeiting, and various sorts of injury that might be committed against ambassadors and public ministers.
But there is one crime that the Framers were explicit about:
Treason is the only crime that the Framers of the Constitution directly addressed — and for which they explicitly provided punishment.
This is not primarily because they were paranoid about having traitors in their midst. It was instead largely because European and British royalty — the very sort of people the American Revolution had been fought to rid (at least part of) the world of — had so vociferously and unjustly abused the idea of treason. Royals could and would apply the moniker “traitor” to anyone they disliked and have that person executed.
The Framers firmly resolved that the concept of “treason” would not be abused in their new republic. So they spelled out its definition in no uncertain terms.
From Article III, Section 3 of the U.S. Constitution:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.
I think it’s a wholly acceptable question to ask how, by any clear Constitutional construction — the most conservative, hard-bit originalism — waging a campaign against the U.S. military as Robert E. Lee did qualifies as anything other than treason. On paper if not in moral substance.
Make no mistake: I’m not advocating that Lee should have been executed as a traitor. The Constitution gives the president fantastically powerful pardon powers so that those powers may come into play in just this scenario. In other words, so that the president can use the pardon power as a leverage tool when brokering peace in a case of domestic uprising, and to foster peace and reconciliation. I strongly doubt Lincoln or even many of the most Radical of Radical Republicans would have wanted Robert E. Lee executed. The country had suffered so much for so long — and the U.S. government did not want to show the world that it was capable of making a bloody purge of its own citizens. But to not have an orderly arrest and a fair trial strikes me as amazing. Such generosity has hardly been shown to our pettiest of criminals.
So with the question of treason raised, we’ll next return to the story of Lee’s citizenship.
[i] In fact Lee redounded to a friend’s home in Richmond for the first period immediately after the surrender. Jefferson Davis, the President of the Confederacy, was imprisoned for a period. Notably, only one high-ranking Confederate was ever convicted of war crimes and executed: Captain Henry Wirz, commander of the notorious prison at Andersonville, Georgia. Wirz had actually been born in Switzerland, and may never have been a U.S. citizen the way we think about it today.