Besides producing three constitutional amendments, the half decade after the Civil War yielded answers to two important constitutional questions.
The first had to do with the practical value of the impeachment clauses of Articles I and II, notably section four of the latter: “The President, Vice President and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” America experienced sixteen presidents through Abraham Lincoln. None had come close to being impeached, let alone removed. Were the impeachment clauses wasted ink?
The presidency of Andrew Johnson initially suggested not. The House of Representatives in 1868 succeeded in impeaching Johnson—that is, a simple majority of the House voted in favor of articles of impeachment charging Johnson with high crimes and misdemeanors. The most important charge was violation of the Tenure of Office Act, which forbade the removal of cabinet officials without Senate approval. At a deeper level, the impeachment reflected Johnson’s unwillingness to defer to Congress on Reconstruction.
The case went to the Senate for trial. A supermajority of two-thirds was required to convict. If convicted, Johnson would be removed from office. Otherwise the effort would fail and he would remain president.
Everyone understood that the Johnson case was deeply political. Some concluded that this made impeachment the appropriate course of action for Republicans angry at the president. Johnson conceivably could have been charged in criminal court with violating the Tenure of Office Act. But the Department of Justice didn’t yet exist, and the attorney general was a Johnson appointee. For this reason, the impeachment process seemed the logical course to follow.
Yet others thought this rendered impeachment and especially conviction inappropriate. The fight between the president and Congress was a matter of politics. Should America set a precedent of removing a president when he made Congress unhappy? The impeachment process was an exception to the separation of powers. The skeptics thought this exception should remain very exceptional.
Johnson’s trial in the Senate was conducted seriously. He came within one vote of the convicting supermajority. Seven Republicans, worried about the precedent, joined the Democrats in voting for acquittal. Johnson remained in office.
The conclusion drawn at the time was that impeachment was essentially impossible. Johnson was as unsympathetic an opponent as his Republican prosecutors could have asked for, being of the wrong party, the wrong section and the wrong philosophy of government. He was also obnoxious personally: crude and sometimes publicly drunk. Yet even he couldn’t get convicted.
Impeachment of presidents became a dead letter. Not for more than a century did another president come close to being impeached. Richard Nixon resigned over the Watergate scandal just ahead of impeachment by the House.
In all of American history to the middle of 2026, only three presidents have been impeached by the House and tried by the Senate. Johnson was the first. Bill Clinton was the second and Donald Trump, impeached twice, the third. Clinton and Trump were acquitted by comfortable margins. The Johnson precedent—that the president is all but unremovable from office by impeachment—continues to hold.
The second constitutional question answered during Reconstruction was whether secession by the eleven Confederate states was constitutional. The Supreme Court, by its 1869 decision in Texas v. White, ruled that it was not.
The reasoning of the court, in a case involving an action by the Confederate government of Texas which was subsequently challenged by the Reconstruction government of the state, closely tracked the logic of Lincoln in 1861.
The outcome was no surprise. A majority of the court in 1869 were Lincoln appointees. The chief justice, replacing Roger Taney, was Salmon Chase, previously a member of Lincoln’s cabinet. Moreover, after a war that killed 600,000, fought on the premise that secession was unconstitutional, a decision by the victors that the motivating premise was wrong was unthinkable.
More interesting and instructive was the fact that the verdict came so late. Plenty of people wished the Supreme Court had ruled on secession before the war, when a verdict against secession might have prevented the conflict.
But such was impossible given the way the Constitution established the federal judiciary. Section 2 of Article III lists the “cases” and “controversies” under federal jurisdiction. In common law, cases and controversies have particular meaning, of which a crucial aspect is justiciability. This concept requires that a question before a court be answerable and remediable by the court. Common law courts, and hence American federal courts, don’t hear hypothetical cases, in which no injury has been done and none can be remedied.
Under the Constitution particularly, federal courts don’t offer advice to the legislature or the executive. This would make the courts complicit in actions by another branch and would therefore violate the separation of powers.
The matter had come up in the administration of George Washington. The president, through Secretary of State Thomas Jefferson, had sent the Supreme Court a series of questions touching the legality of actions his administration was pondering. The justices, headed by John Jay, declined to offer the requested advice. “The lines of separation drawn by the Constitution between the three departments of government—their being in certain respects checks on each other, and our being judges of a court in the last resort—are considerations which afford strong arguments against the propriety of our extrajudicially deciding the questions alluded to,” the justices said, “especially as the power given by the Constitution to the President”—in section 2 of Article II—“of calling on the heads of departments for opinions seems to have been purposely as well as expressly limited to executive departments.”
“Extrajudicially” was the key term here. If the executive wanted the opinion of the judiciary, it needed to bring a case.
The precedent stuck. The consequence, seven decades later, was that secession had to be attempted before it could be adjudicated.
Great read, as always. Thank you!