Emergence of Oppressive Governments in the Post-War South
Research notes laying out the issues in the post-Civil War South that led to the 14th Amendment
Emergence of Oppressive State and Local Governments in the Post-War South
Abolitionists soon realized that while the 13th Amendment was an important achievement, the situation in the South still presented a threat.
Root 119: “On May 10, 1865, William Lloyd Garrison, perhaps the most prominent abolitionist in the United States addressed the thirty-second annual meeting of the American Anti-Slavery Society,” which he founded in 1833.
Root 120: With the ratification of the 13th Amendment, “This Society has essentially consummated its mission.”
Garrison wanted to dissolve the organization, as, in his view, it had accomplished its mission.
Root 120: Douglass was skeptical. He argued that even with this incredible achievement, “the South, by unfriendly legislation, could make our liberty, under that provision, a delusion, a mockery, and a snare.”
Douglass: “What advantage is a provision like this Amendment to the black man, if the Legislature of any State can to-morrow declare that no black man’s testimony shall be received in a court of law?”
Root 120: “As Douglass well understood, the formal end of slavery—as vital, triumphant, and long overdue as it was—did not necessarily mean the end of racist government abuse.””
Root 120 quoting Douglass: “So long as “the Black man can be denied a vote” and so long as “the Legislatures of the South can take from him the right to keep and bear arms,” Douglass maintained, “the work of the Abolitionists is not finished.”
Root 120: “…through the tangled web of laws, regulations, and ordinances known as the Black Codes, these governments menaced the freedmen and freedwomen on virtually every front, targeting their rights to vote, assemble, speak freely, receive due process, travel, enjoy public accommodations, make contracts, own property, earn a living, and much else besides.”
The Punishment Exception and Rise of the Black Codes
Since the final wording was based on the familiar wording from the Northwest Ordinance, the 13th Amendment included an exception to its ban on involuntary servitude that allowed for it to be imposed on someone as punishment for a crime. While there was a long history of this type of provision being included in statutes and state constitutional provisions that sought to ban slavery.
Foner 46-47: “It could be found in the Wilmot Proviso, which sought to bar slavery for the territories acquired during the Mexican-American War, the congressional law of 1862 abolishing slavery in all the territories, and in nearly all the constitutions of free states that entered the Union, from in 1803 to Nevada, the last state admitted before the amendment’s ratification. Thaddeus Stevens, probably the most radical member of the House of Representatives, included the same provision in his own draft of an abolition amendment.”
The punishment exception quickly became an issue, as Southern states began to enact Black Codes to severely curtail the rights of black Americans and reintroduce forced labor back into the South.
Foner 47: “In November 1865, former Confederate general John T. Morgan pointed out in a speech in Georgia that the Thirteenth Amendment did not prevent states from enacting laws that enabled “judicial authorities” to consign to bondage blacks convicted of crime.”
Black Codes eviscerate economic liberty
Root 122: Mississippi and Alabama quickly instituted vagrancy laws whose “vague language offered a handy pretext for the authorities to arrest pretty much any African American adult they wanted, with a sentence of forced labor to follow.” In many instances, that punishment was “carried out on the very same plantations on which these prisoners had once been held as slaves.”
Root 122: In one Louisiana jurisdiction, a new law declared “every “negro or freedman” must be “in the regular service of some white person or former owner.”
Root 122: South Carolina “aspiring black shopkeepers and peddlers were required to persuade a local (white) official of their “skill and fitness”” in the trade.
Root 122: “Likewise, in North Carolina, the sale of any object worth ten dollars or more required a white witness if either party to the sale was black.”
Root 122: Opelousas, Louisiana
Made it illegal for blacks to “sell, barter, or exchange any articles of merchandise” without the permission of local authorities.
Black Codes target right to self-defense
Neily 86-87: “Discharged Union soldiers, white and black, were forcibly stripped of their weapons by officials throughout the South. It was reported that in one Kentucky town, “the town marshal takes all arms from returned colored soldiers and is very prompt in shooting the blacks whenever an opportunity occurs,” while outlaws “make brutal attacks and raids upon freedmen, who are defenseless, for the civil-law officers disarm the colored man and him over to armed marauders.”
Neily 87: “Any doubts about the constitutionality of this law [Civil Rights Act of 1866] were resolved by the Fourteenth Amendment, which was designed to empower the federal government to stamp out a culture of lawless oppression in which newly free blacks and their white supporters were systematically silenced, terrorized, and abused.”
Root 123: Florida required black residents to get permission first from local authorities, otherwise it was “unlawful for any Negro, mulatto, or person of color to own, use, or keep in possession or under control any bowie-knife, dirk, sword, firearms, or ammunition of any kind.”
Root 123: Mississippi stated that “no freedman, free Negro, or mulatto…shall keep or carry firearms of any kind.”
Black Codes were intrastate abridgments of state-given rights. They placed burdens on black Americans and denied them certain rights, such as the ability to testify in court, serve on juries, and keep and bear arms for their self-defense, which was especially important given the denial of protection of the laws. In short, states were denying specific groups of its citizens the rights that other groups of citizens enjoyed.
Rule of Law Issues in the South (in addition to the Black Codes)
Denial of federal civil rights
One of the main tools abolitionists used to try and end slavery in the United States was through publications, ranging from newspapers, to pamphlets, to tome-length books. In an effort to preserve slavery, slave states began to take efforts to suppress abolitionist writings, violating the right to free speech, the free press, and federal postal laws.
According to Wurman, Tennesse, Maryland, Missouri, Mississippi, South Carolina, Georgia, Virginia, and Alabama all took significant steps to prevent the distribution of abolitionist materials. In addition, “South Carolina outdid the others, with its governor demanding that the Northern states make the distribution of abolitionist literature a capital offense.” Furthermore, “no Southern postmaster would deliver abolitionist mails. In the South, the federal postal laws were a dead letter.”
Denial of Comity Clause rights
Comity Clause in Article IV meant that states had to respect the privileges and immunities of federal citizenship. In practice, this meant that states had to respect the rights of citizens from other states when they were within the state’s jurisdiction. However, states argued that free blacks were not citizens of the United States, and therefore not protected by the comity clause.
One example of this phenomenon was the passage of various Seamen Acts in the South.
Wurman 77: South Carolina thus enacted the Negro Seamen’s Act of 1822, which provided for the jailing of all free black seamen whose vessels came into Charleston until their vessels cleared, at the expense of the vessel’s owner; if the vessel’s owner failed to redeem the sailor, the sailor was to be sold into slavery.”
Wurman 78, quoting House committee report at behest of Massachusetts merchants who claimed the laws violated the comity clause: “The committee have no hesitation in agreeing with the memorialists, that the acts of which they complain, are violations of the privileges of citizenship guarantied by the Constitution of the United States. The Constitution of the United States expressly provides, (art. 4, sec. 2) that “citizens of each State shall be entitled to all privileges and immunities of citizens in the several states.” Now, it is well understood that some of the States of this Union recognize no distinction of color in relation to citizenship. Their citizens are all free; their freemen all citizens. In Massachusetts, certainly—the State from which this memorial emanates—the colored man has enjoyed the full and equal privileges of citizenship since the last remnant of slavery was abolished within her borders by the constitution of 1780, nine years before the adoption of the Constitution of the United States. The Constitution of the United States, therefore, at its adoption, found the colored men of Massachusetts a citizen of Massachusetts, and entitled him, as such, to all the privileges and immunities of a citizen in the several States. And of these privileges and immunities, the acts set forth in the memorial constitute a plain and palpable violation…However extended or however limited may be the privileges and immunities which it secures, the citizens of each State are entitled to them equally, without discrimination of color or condition…”
Congress, however, did not take any action. Supreme Court did act, however, in the form of the Dred Scott decision in 1857.
Wurman 81: Chief Justice Roger Taney ruled “black people “are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secured to citizens of the United States.”” This was a crucial ruling, because it meant that “even if a black man were a citizen of a state, that still did not make him “a citizen of the United States” entitled to sue in court and to the comity clause rights in Article IV.”
However, the Dred Scott decision was not unanimous. In fact, it was far from it, as two dissents were filed, including one by Justice Benjamin Curtis that persuasively repudiated Chief Justice Taney’s brazen judicial policymaking. Indeed, Justice Curtis “showed that in at least five of the states prior to the adoption of the federal Constitution, free blacks “were not only citizens,” but also “such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.” Thus they already were citizens—and nothing in the Constitution deprived them of that citizenship.” Wurman 82
The decision—in the face of decades of precedent, the original public meaning of the relevant provisions, and clear history and tradition amongst the several states—stripped black Americans of citizenship and ensured they would be denied comity rights across the South. And for Dred Scott, it meant he did not have standing to sue for his freedom from slavery in federal court.
Denial of Equal Protection of the Law
Wurman 79: After Congress did not act to rectify the various Seamen Acts, Massachusetts sent two emissaries to South Carolina and Louisiana to protest their Seamen Acts. Upon arrival, the men were threatened with lynching and “both had to flee the respective states—neither of which would extend to them.”
Denial of equal protection occurred both before and after Civil War, in free states as well as in the South. Perhaps most prominent example before the war was the murder of Elijah Lovejoy, a prominent abolitionist, in Illinois in 1837. After suffering from multiple attacks from mobs, Lovejoy spoke to a group of citizens in Alston, he asked, “The question to be decided is, whether I shall be protected in the exercise and enjoyment of those rights—that is the question, sir;--whether my property shall be protected, whether I shall be suffered to go home to my family at night without being assailed, and threatened with tar and feathers, and assassination.” He would be murdered a few days later. Wurman 86
Denial of equal protection of the laws also was a serious issue after the Civil War. Dexter Clapp was a Brigadier General for the Union Army during the Civil War, when he commanded the 38th US Colored Infantry Regiment. After the war, he became an agent with the Freedman’s Bureau, which was established to assist newly free black Americans as they made the transition out of slavery. These agents were the federal government’s boots on the ground for Reconstruction and in February 1866, Clapp testified in Congress before the Joint Committee on Reconstruction on his experiences working in North Carolina:
“Some eight weeks ago several returned rebel soldiers went into the village of Washington and commenced shooting and beating Union men. Several assaults were made, and at least one Union man was publicly whipped in the streets, and some negroes were wounded. On their return they met on the public highway a negro. They first castrated him and afterwards murdered him in cold blood. These persons a short time afterwards gave themselves up to the civil authorities; but they soon escaped by overpowering the jailer. An order was issued to the police of that county to arrest them. This was not done. Meanwhile this party continued to commit outrages. I know that several negroes were shot by them. On the 25th of December the father of one of these parties rode up to a plantation, where two negro boys, ten and twelve years old, were playing in the yard. He took them one mile direct into a swamp, and there he shot them, killing one instantly and wounding the other.”
“Of the thousand cases of murder, robbery, and maltreatment of freedmen that have come before me, and of the very many cases of similar treatment of Union citizens in North Carolina, I have never yet known a single case in which the local authorities or police or citizens made any attempt or exhibited any inclination to redress any of these wrongs or to protect such persons. That seems to me the worst indication of the state of society there -- worse than the fact that these things take place.”
Root 123: As Alexander Dunlap, a black resident of Williamsburg, Virginia, observed of the various forces arraying against him and his community in early 1866, “We feel in danger of our lives, of our property, and of everything else.”
Important to distinguish the nature of the issue of denial of equal protection of the laws in comparison to other issues. The denial of comity rights, the intrastate abridgment of the Black Codes, and the violation of federal rights by states were all examples of state action that could be prohibited. Denial of equal protection, on the other hand, is an example of problematic state inaction. Thus, while the first set of problems could be rectified by states ceasing to take certain actions, providing protection of the law required affirmative state action and represented a different category of issue. If the government confiscates your gun, the remedy is for the government to not do that. But if the government refuses to try and arrest, prosecute, and punish the lynch mob terrorizing you and your fellow citizens, the remedy is for them to start doing so.
The denial of the protection of the laws also intersected with a further denial of rights, namely the denial of due process of law to many free blacks and Union-sympathetic whites.
As Wurman recounts, “In reference to abolitionists, the aptly named Governor Lynch of Mississippi warned that “necessity will sometimes prompt a summary mode of trial and punishment unknown to the law.”” Governor Lynch’s so-called “summary mode of trial and punishment” is a verbose way of saying lynch mob. At the time, an individual accused of a crime was entitled to due process of law in some form in every state in the country, however, if a lynch mob decides the accused is guilty and comes and murders the person before there is a trial, then that person has been denied due process of law. Thus, the denial of the equal protection of the laws often entailed “the corollary denial of due process.” Wurman 91.
Summary of legal issues
Abridgment of intrastate, state-given rights
Black Codes denied certain categories of citizens from enjoying rights, privileges, and immunities that enjoyed or granted by other groups of citizens within the same state
Denial of Comity Clause Rights
Refusing to recognize the comity clause rights of free blacks and certain whites while they were within the jurisdiction of a given state
Violation of federal civil rights and laws
Suppression of free speech, freedom of the press, and federal postal laws in order to prevent spread of abolitionist messages
Denial of equal protection of the laws
States allowed private actors to violate laws with impunity, denying equal protection of the laws through inaction
Corollary denial of due process of law as lynch mobs ran rampant
These are the primary issues the 14th Amendment would seek to address. By understanding the issues at play, it is easier to ascertain and understand the original public meaning of the 14th Amendment’s provisions.
References
Damon Root’s A Glorious Liberty: Frederick Douglass and the Fight for an Antislavery Constitution
Ilan Wurman’s The Second Founding: An Introduction to the Fourteenth Amendment
Eric Foner’s The Second Founding: How the Civil War And Reconstruction Remade the Constitution
Clark Neily’s Terms of Engagement: How Our Courts Should Enforce the COnstitution’s Promise of Limited Government
Dexter Clapp’s Testimony to Joint Committee on Reconstruction