Part 1 - The Call for Convention

1,308 days later, peace returned to America—at least, that's how history remembers it. Once Hawthorne surrendered in Atlanta, the battles were over, and the two Northern governments were triumphant in their rebellion-turned-revolution. Peace, however, had come at a price - over half a million men had been killed in the three and a half years of fighting, in addition to the tens of thousands of civilians who had also perished. Swaths of the country lay in ruin, with much of Georgia, Tennessee, Kentucky, Mississippi, Louisiana, Alabama, and New York scarred from the fighting, with whole cities laid waste. Some wondered whether New York City, fought over thrice, could ever truly recover and who would foot the bill to help the city rebuild. And even though the Union had formally surrendered to the Northerners, it did not mean all fighting actually ceased on October 17th. For starters, local militia bands across the South vowed to fight on - in addition to renegade Union Army units. Furthermore, there was still sporadic fighting in the territory held by the Republic of New Africa, where whites had taken to shooting any black person they saw, and often vice versa. Some states, like North Carolina and Florida, had seen almost no military presence and balked at the idea that they were now “occupied territory.”

Complicating things further was the issue of just whose jurisdiction the former Union territory now belonged to. Did the Free States now control all of the South? Did the Confederation get any territory? What would happen to the lands controlled by “Commander” Black and the Republic of New Africa? These questions had been looming large even before the final surrender, and thankfully for the future of the United States, both Acting President Brandt and Consul Portman recognized that an agreement had to be made quickly about these issues. A week after the surrender, the two leaders met in Philadelphia for what became known as the Brandt-Portman Accords, where they laid out a roadmap for the coming months as the nation tried to heal from the war.

There were four critical agreements made at this meeting: First, the armies of the Free States and the Confederation would jointly occupy the southern states under the Joint Military Command, which would be headed by two generals, one from the Free States and one from the Confederation. Second, the Southern states would be placed under martial law and organized under four military districts (District 1: North and South Carolina; District 2: Georgia, Florida, and southern Alabama; District 3: northern Alabama, Mississippi, and Louisiana - which would be under the special administration of the “Army of New Africa,” which was incorporated into the Joint Military Command; District 4: Tennessee, Arkansas, and Jefferson). Third, for the time being, the Franklin-based government of the Free State Alliance would administer the states of Minnesota, Platte, Iowa, Illinois, Indiana, Kentucky, Ohio, Pennsylvania, Appalachia, Virginia, Maryland, and Delaware (though there had been discussion about placing those last three under a military occupation district). Then, the Confederation’s government would administer New York, New Jersey, Connecticut, Rhode Island, Massachusetts, Vermont, New Hampshire, and Maine. The western territories were also recognized as being under nominal Free State control. Fourth, and most controversially at the time, Brandt agreed to ask the states to call for a constitutional convention under the provisions of Article V. Portman and the Confederal government insisted on this point - they felt that the 1787 Constitution was no longer functional and that the war had been a symptom of that dysfunction. It was also decided that the occupied states under martial law would not participate, which was probably the most controversial part of this decision.

Under Article V, two-thirds of the states had to call for a convention before one could be held. In 1860, there were thirty-one states (including Appalachia). Normally, that meant twenty-one states would need to call for a convention. However, with ten states under occupation and disqualified from participating, only fourteen states would be needed to convene the convention. Almost immediately, protests to this decision about not allowing the Southern states to participate began to pop up, most notably in the three states that had changed sides and joined the Free States in the final months of the war. Virignia’s governor, Peter Doyle, announced that Virignia would not only refuse to call for a convention under these circumstances, they would not participate in a convention or recognize the results of such a gathering if it excluded the Southern states - saying that such a move would make a mockery of American democracy. Maryland and Delaware quickly followed suit with their own anti-convention declarations.

Some Northern politicians were similarly worried about this issue, most notably the governor of Platte, Harrison Bently, who also called the decision undemocratic and would not call his state legislature into special session for a convention call. By the start of December, the eight states of the Confederation passed resolutions calling for a convention. With Platte, Virginia, Maryland, and Delaware all refusing to do so, six of the remaining seven states would be required to call for a convention. Having received word that this motion was unlikely to pass in Kentucky and that there were those in Iowa and Minnesota that were also wavering, Brandt began to fear that the call for a convention would fail, at which point it was possible that the Confederation would decide to go it alone and leave the United States permanently. Even though the Confederation’s government was saying it was committed to staying and “reforming” the United States, there were those in its government that favored permanent independence. They had strong backers in London who could easily step in and make that stick. The Acting President proposed a compromise that Portman ultimately agreed to: if southern state governments - even though they were technically suspended under marital law - would agree to ban slavery in their state before the convention, they would be allowed to participate. This was palatable enough for some of the detractors, and so by the beginning of January, Minnesota, Iowa, Illinois, Ohio, Pennsylvania, Kentucky, and Maryland had all voted in favor of resolutions calling for conventions. Virginia and Delaware had voted against it, but both said they would participate if the convention were held. With sixteen states in support, the Free State Congress announced that a Constitutional Convention would be convened in Philadelphia starting on March 4th, 1861. Each state would be allotted delegates based on the number of representatives and senators that state had had before the war - with Appalachia having approximately 300,000 people as calculated by the 1850 census, it had been granted 7 representatives in the Free State Congress so it would have 9 delegates at the convention.

Before the convention could begin, however, two wrinkles would develop that nearly derailed the process yet again. First, the Native Nations District, which had organized itself as the Territory of Gigadohi (a name derived from the combining of the Cherokee words for “red” and “land”), and the Kanasaw Territory (which now had a Native-majority controlled legislature) sent a request in January that they be allowed to participate in the Convention. Initially, no plans had been made to allow any territory to send delegates, but this request seemed weightier given the Native Nations' assistance in the war. After several weeks of negotiations, Acting President Brandt convinced Congress to approve allowing all federal territories to send delegates, a total of three each, equivalent to the minimum number a state could have. Then, on January 27th, Commander Black, leader of the Republic of New Africa, announced that his government intended to dissolve and that he and his fellow RNA leaders would reconstitute the governments of the states of Louisiana, Mississippi, and Alabama, and thus send black delegates to the convention. This announcement shocked many, including even Hugo Brandt, who hadn’t really imagined that he would have former slaves attempting to help write the nation’s new constitution. Yes, the Free States had approved the Negro Emancipation Act, which had granted citizenship to former slaves, but most Free Stater leadership had naively assumed that whites would remain in control of government in the Southern states.

Joshua Black and his compatriots knew there would be blowback from their decision, but they saw it as the only way to ensure their people would truly be represented at the convention. They also took great pains to make sure that their state conventions to reconstitute those state governments were not black-only affairs, allowing in whites who took an oath that rejected slavery so long as those whites had not owned slaves themselves. It was a gamble, but it paid off. With North and South Carolina also having adopted new constitutions that outlawed slavery and accepted the tenants of the Negro Emancipation Act of 1860, the Brandt government would have been hard-pressed to find a good reason not to allow the black delegates from Louisiana, Mississippi, and Alabama - especially after it became known that the rejection of those delegates might jeopardize involvement form the Confederation. Alabama ended up being the only strong point of contention. The state had been divided up into two separate military occupation districts, essentially along the lines of what the Republic of New Africa had and had not controlled by the time Atlanta fell: the north in the hands of former slaves, the south largely still controlled by the pre-war government that had evacuated to Mobile. As Black’s men tried to set up a pro-Free State government in Birmingham, the white Alabamians in the south refused to participate, and the military leadership from Occupation District 2 was not inclined to force the southern part of the state to join the new, freeman-dominated government. Ultimately, no Alabamian delegates would participate in the convention due to the stalemate between the two groups.

The 1861 Constitutional Convention would ultimately consist of 484 delegates from twenty-five states plus four territories. Although most of the convention's business would be conducted in the Merchant’s Exchange Building, the opening meeting on March 4th, 1861, was held at Independence Hall (which would also serve as an administrative office for the convention and space for committee meetings). The state and territorial legislatures appointed their delegates. While a few prominent members of Congress were among those chosen, most were local men of prominence, given a rare opportunity to shine at the national level. Some of those in attendance included Pennsylvania Senator Thaddeus Stevens, Massachusetts Lieutenant Governor Charles Sumner, New York’s former Free State Governor William H. Seward, Indiana Senator Abraham Lincoln, Kentucky’s pre-war governor John J. Crittenden, Kentucky Representative Cassius Clay, North Carolina Senator William Graham, South Carolina’s pre-war governor James Petigru, former Oregon territorial governor George Abernethy, Mississippi’s acting-governor Joshua Black, Louisiana’s acting lieutenant governor Ben Cain, and Gigadohi’s Deputy Governor Degataga Watie. While most of the delegates were white (459), there were twenty black men (seven of Louisiana’s eleven delegates, nine of Mississippi’s thirteen, three from Massachusetts, and one from New York), and five were Native American. Ideologically, there were 157 delegates from the Confederation, 197 delegates from states that had joined the Free State Alliance essentially from the start, 94 Southern delegates, 6 from the Western territories, and 29 “minority” delegates from areas controlled either by freemen or Natives.

Acting President Brandt and Consul Portman were both on hand for this initial opening ceremony in the cramped space of Independence Hall, where they spoke of the importance of national unity and laid out the basic charge to the delegates: reform the constitutional order to prevent future strife, in particular the structure of presidential elections and presidential power, in addition to enshrining the end of slavery. The two leaders then presided over the convention president's election before returning to their respective capitals. The top contenders for the position were Senator Lincoln, Senator Stevens, and former Governor Abernethy. In the end, Lincoln, who had been for abolition his entire political career but was seen as a more moderate choice than the radical Stevens, was chosen for this important role.

The following day, March 5th, the first full business session of the Convention opened, with Lincoln giving his first official address to the delegates:

Lincoln proposed an initial full-body debate on a key point for the convention before committees and other such sub-groups could be formed to tackle specific issues: would they be abandoning the 1787 Constitution or merely editing it? Most of the Confederal delegates were, unsurprisingly, in favor of creating something new - a fresh continuation of their revolutionary fervor that started in 1857. This sentiment was also shared by the delegates from Louisiana, Mississippi, Gigadohi, and Kanasaw, along with a smattering of radicals from other states. While it was not enough votes to pass, it was enough to prevent a two-thirds majority vote (which the convention had agreed upon) from opting for making relatively minor edits to the 1787 Convention. Ronald Jackson, the former Democratic presidential candidate from 1856 and a delegate from Pennsylvania, proposed a compromise - the convention would agree to stick with the spirit and overall structure of the 1787 document while being open to “noticeable changes” that could make parts of it feel brand new. There was grumbling from both camps, but ultimately, the Jackson Compromise was approved, 401 to 82. Once that was out of the way, the delegates broke off into the following major committees: the Legislative Committee, the Executive Committee, the Judicial Committee, the Rights Committee, the States Committee, and the Procedural Committee. These groups would meet in several locations around the Merchant’s Exchange, and every Friday, the full convention would reconvene to discuss updates and propose votes.

The first such proposal would come at the end of that very week, on March 8th, when Ohio delegate Jack Peal, chair of the Rights Committee, proposed that the Bill of Rights, where the new addition regarding citizenship and an end to slavery would be placed, be moved to the front of the document as the new Article I, with all other articles getting shifted down one place. There was some resistance to this from more conservative members, who harkened back to the original decision from the first convention in 1787 not initially to include a specific list of rights and argued that those rights should stay at the end of the document. Ultimately, however, the committee’s proposal had a solid group of supporters and would ultimately pass 399 to 84. While the Rights Committee’s final draft for the new Article 1 would have some heated debate about how it defined citizenship:

Despite wartime promises, there were still some delegates that balked at the idea of granting citizenship to blacks and Natives - it was one thing to ban slavery, they argued, but quite another to bestow citizenship to the freemen, to say nothing of the Natives. The language about Indigenous peoples essentially getting to “choose” citizenship also had a lot of detractors. Many of those asked the obvious question: what becomes the status of those who reject citizenship? Would they remain domestic dependents? And would this be an individual decision or the decision of a tribe as a whole?

Some were also uncomfortable with formally making citizenship - which had been ill-defined in the 1787 document and existed as something that both the states and national government shared jurisdiction over - an explicitly federal issue to oversee. The other provisions of the new article - the 10 original items from the Bill of Rights, equal protection, due process, and enforcement, had majority support, so all the debate would focus on that first section. It would take some wrangling with the more intransigent delegates, and some clarifications regarding native citizenship (it would be chosen by existing natives individually, not by tribes, and could be claimed later if initially rejected, and those not accepting citizenship would be declared non-citizen residents with a more limited scope of protections), but ultimately the new Article I was approved on March 22nd by a vote of 380 to 103. During this same period, the other committees were wrestling with their own revisions, with much more tension and competing camps than the Rights Committee, thus slowing the work. The Judicial Committee discussed a proposal to set up a separate constitutional court to review all laws passed by Congress as a rule, but this was ultimately rejected. The Judicial Committee reported the same day that the new Article I was passed that they recommended no major changes to what would become Article IV of the new constitution, other than to explicitly make clear the Supreme Court’s power of judicial review, taking precedence and making it codified, a measure that enjoyed near unanimous approval by the full Convention. The following week, on March 29th, 1861, the joint report of the Legislative and Executive Committees was presented to the convention, and would lead to weeks of debate - and at one point a near breakdown of the whole process.