The Second Founding: How the Civil War and Reconstruction Remade the Constitution by Eric Foner

We were so close after the Civil War. So very, very, very close to getting rid of racial strife once and for all — or, at the very least, nipping it in the bud with prudent, focused, and specific laws and amendments to make sure that slavery, or the like, never ever happens again. Foner points out, however, that even though post-Civil War reconstruction and the amendments that followed did, in fact, remake the constitution, we simply did not have the political will and forceful leadership necessary to ensure that Black Americans could live the lives that they needed and wanted to live, and the prevelance of racism, states rights, the myth of the “Lost Cause”, and our subsequent unwillingness to enforce the amendments that we created only ensured that Black America continued to suffer well into the 20th century. Further, Foner makes the case that the Supreme Court’s interpretation of these amendments made sure that racism, racist laws, and racist policies were here to stay. A brilliantly articulated history of this time — and one that also shows how far we have to go even 150 + years after all of this should have been an open and shut case.

  • thirteenth amendment abolished slavery
  • 14th — birthright citizenship and equality before the law
  • fifteenth secured black male suffrage
  • reconstruction amendments enhanced the power of the federal government
  • congress to enforce provisions — guaranteeing that reconstruction was an ongoing process
  • second founding — constitutional revolution
  • reconstruction was roughly from 1865–1877 when the last southern stat came under control of the white supremacist democratic party
  • for most of the 20th century, an account of reconstruction known as the Dunning School — Columbia University professor William Dunning — dominated historical writing, legal scholarship, popular consciousness
  • published major works in the 1890’s and early 1900's
  • ingrained racism undermined the value of the Dunning Schools Scholarship
  • condemned reconstruction — portraits of Lost Cause ideology
  • nostalgic image of the Confederacy
  • provided an intellectual foundation for Jim Crow
  • political lessons were clear — biracial democracy was impossible — also implied that the reconstruction was imposed on the south by northerners
  • white south should remain solidly democratic
  • memory of reconstruction — purveyed by the Dunning School gave shape nd meaning to white supremacy politics in the south
  • civil rights revolution destroyed the pillars of the Dunning School
  • no historian believes that any important documents possesses a single meaning or intent
  • creation of meaning is an ongoing process
  • congress built future interpretation and implementation into the amendments
  • thirteenth allows involuntary servitude — convict labor
  • fifteenth — leaves the door open to disenfranchisement
  • ambiguity creates possibilities
  • supreme court has too frequently chosen a narrow reading of the amendments — with little thought about the practical consequences of its decisions
  • without black suffrage in the south, there would be no 14th amendment, ironically
  • second founding made it possible for moments for equality of all kinds to be articulated in constitutional terms
  • rights of the individual at the mercy of the states … placed them under the shield of national protection
  • no significant change in the constitution took place during the civil rights era — movement did not need a new constitution, it needed the existing one enforced
  • rewriting the const. was an incident in the larger struggle for freedom and equality
  • slavery was politically powerful and economically thriving — cotton nations most important export, profits generated by lsavery enriched not only planters in the south but also merchants, manufacturers, bankers in free states
  • 1787 — around 700K slaves in the US made up 40 percent of the populations of the states from Maryland to Georgia
  • of the 55 delegates nearly half possessed slaves
  • Washington owned over 200
  • 3/5 clause enhanced southern power in the electoral college
  • const. left slavery beyond the reach of he national government — rendered blacks all but invisible
  • meaning of citizenship — in the const. no definition is given of it anywhere
  • Comity Clause — suggest that the rights of citizens are determined by the states, not the govt.
  • nowhere did free african americans enjoy full equality before the law
  • concept of equality before the law barely existed before the civil war
  • idea of equality before the law was not known at all
  • rights of married women were exercised by their husbands
  • common law of master and servant
  • access to the ballot box was a privilege or franchise, not a right
  • social rights — personal and business relationships, outside the realm of government supervision
  • obstacles confronted those seeking to implement idea of equal rights for blacks in reconstruction.
  • tradition of local self government before civil war — securing not equality but public order, health, safety morality
  • inequality was built into common law
  • persistence of traditional respect for the authority of the sates would hamper national efforts at enforcement and provide justification for supreme court rulings limiting the amendments effectiveness
  • “freedom national” — const. made possible a kind of antislavery politics, some thought
  • doctrine insisted that the const. regarded slavery as a local institution, confined to the states where it was recognized by law
  • Cooper Union speech — Lincoln argued that the const. intent was antislavery, purposes had been distorted by southern domination of successive national administrations and the federal courts
  • antislavery interpretation fell on deaf ears at the supreme court
  • first legal treatise on the rights of free blacks came from the pen one a white abolitionists, William Yates, in 1838
  • persons born inte US were american citizens who should enjoy full equality regardless of race
  • Fugitive Slave Act of 1850 — led to the elevation of due process of law”
  • equal protection was a staple of abolitionist discourse
  • American Colonization Society — founded in 1816, advocated for the removal of blacks already free
  • William Lloyd Garrison condemned it — free blacks seized upon the const. requirement that the president be a natiural born citizen to argue that american citizenship derived from place of birth, not ancestry or race
  • equality — hallmark of antebellum black politics
  • before the war, black spokesmen, claimed in the preamble of the Declaration rather than the const. — liberty and equality
  • Dred Scott — Taney declared that the const. expressly protected the right of property of slaves, blacks were permanent aliens, comity clause did not apply to them
  • war greatly enhanced the power of the national government
  • slaves as property were worth nearly 4B in 1860 dollars
  • during the war, desegregation of public transportation in the national capital, repealed the ban on black testimony in federal courts, mandated that black and white soldiers receive equal pay — from congress
  • second founding — federal government custodian of freedom
  • racism remained deeply entrenched in the north as well as in the south
  • amending the const. posed a daunting challenge
  • framers did not force a situation in which 11 states waged war against the nation
  • enduring power of constitutionalism itself — widespread desire to find a secure const. basis for public policy
  • writing changes claim not only on the legal system but also on the public imagination
  • more slaves in the US when the war began than at any point in the nations history
  • abolition did come — played out over time, was a process, not a single event
  • proclamation by itself did not abolish slavery
  • 13th amendment was ratified in dec. 1865, without it, slavery might well have lingered for years in some parts of the US
  • lincoln was not an abolitionist and never claimed to be one
  • emerged committed to halting the westward expansion of slavery
  • in the south, lincoln seemed as dangerous as an abolitionist
  • advocated a program of gradual emancipation with monetary compensation for the loss of property in slaves and colonization
  • const. amendment — form of legal emancipation — needed to destroy the system for good
  • sept 1862 Preliminary Emancipation Proclamation, he announced a change in policy
  • december of that year, he again presented his old plan for state by state abolition
  • with the full EP, was a military emancipation as commander in chief , but had no bearing on the slaves in the border states
  • all told, perhaps 800K of the nearly 4M slaves were not covered by the proclamation, but 3.1 million were
  • largest act of slave emancipation in world history despite its limits
  • emancipation is not quite the same thing as abolition
  • proclamation authorized the enrollment of black soldiers into the armed forces — 200K black men
  • proclamation fundamentally altered the character of the war — did not mean the end of Lincoln’s quest for state by state abolition
  • Womens Loyal National League — 1863, women activists suspended the movement for suffrage to press for an end to slavery
  • republican party soon rallied around the 13th
  • they condemned slavery not simply as a violation of basic human rights but as an affront to the nation
  • enforcement power to congress — new sense of national empowerment
  • first amendment in the nations history to expand the power of the govt. rather than restraining it
  • freedom of the person became henceforth a matter of national concern
  • amendment was immediate, not gradual, like the EP
  • applied to the entire country, abolition of slavery as an essential part of the nations legal order
  • fundamental right to personal freedom
  • Dems condemned it as a revolution in federal state relations, which violated the original understanding that states should decide for themselves whether or not to abolish slavery
  • aftermath of his reelection, Lincoln declared that the voice of the pope had been heard and called on the house to vote again on the amendment — house approved on jan. 31 1865
  • some changed their minds after observing the conduct of blacks during the war — disproved the idea that the negro race was unfit for freedom
  • northern tier of slave states joined the north in bringing about the abolition of slavery
  • early 1865 seven former slave states had abolished slavery by statue, amendment or popular convention
  • Delaware actually didn’t do it until 1901 — Kentuck didn’t formally ratify any of the amendments until 1976
  • Andrew Johnson — horrible racist, took over
  • Mississippi didn’t get around to ratifying the 13th until 1995
  • on dec. 18, 1865, sec of state william seward certified that the 13th was now part of the const.
  • black communities long celebrated jan. 1 — date of proclamation — juneteenth, june 19, 1865, when Union general gordon granger arrived in texas and proclaimed the end of slavery there
  • 1948 — Truman established Feb. 1st, anniversary of Lincolns signing of the text of the 13th, as National Freedom Day — dec. 18th has long been forgotten
  • incidents of slavery, including denial of rights to marry, own property, testify in court, enjoy access to education, presumably abolition would carry with it these essential entitlements
  • little discussion on whether abolition conferred citizenship on blacks
  • right to the fruit of ones labor, an essential distinction between slavery and freedom
  • free labor vision of a reconstructed south imagined a vast social transformation
  • anti peonage act of 1867 — under authority of the 13th, probhitied both voluntary and involuntary peonage — forced labor to satisfy a debt
  • paradoxically, chinese exclusion, enacted into national law in 1882, was promoted, in part as a fulfillment of the 13th amendment
  • end of slavery meant that black womeen entered into a social and legal world in which men were deemed to be the heads of families, with wives and children subordinate to them
  • restoring the freedman manhood and women right to raise their children without white interference was central to conceptions of emanicapation
  • amendment allowed involuntary servitude to continue for those convicted of a crime
  • mass incarceration, widespread use of prison labor suddenly have become national issues (today), provision as attracted considerable discussion
  • forced, hard productive labor was associated with incarceration
  • prisoner exempti9on in the 13th originated in Jeffersons proposed Land Ordinance of 1784
  • jefferson may have feared that freed slaves would become idle — resort to unlawful behavior- felt that labor was good for character
  • prisoner exemption was almost never discussed in the press
  • Black Codes — define and circumscribe the freedom that blacks now enjoyed
  • limited freedom of movement, barring them from following certain occupations, owning firearms, servicing on juries, testifying in cases involving whites, or voting
  • involuntary black labor was central to these laws
  • required all adult black men at the beginning of each year to sign a labor contract to work for a white employer or face prosecution for vagrancy or other vaguely defined crimes
  • 1867 — John Kasson of Iowa introduced a resolution clarifying the meaning of the exemption clause — passed the house but didn’t come to a vote in the senate
  • to this day, persons convicted of crimes are routinely subjected to involuntary servitude while incarcerated and to otherwise prohibited forms of discrimination — in employment, access to housing, right to vote, even after serving their sentences
  • prison population rose dramatically, blacks comprised the overwhelming majority of those incarcerated
  • as late as the 1980’s, the Dep of justice concluded that the amendment attaches some of the characteristics of slavery to prisoners
  • black owned New Orleans Tribune fall 1865, pressed for a new const, amendment barring states from making any distinction in civil rights and privileges
  • many abolitionists, the 13th was a resting place, not the end
  • No Reconstruction Without Negro Suffrage
  • jan 1865 New York World, dec newspaper, forecast that despite the abolition of slavery, states might well rely on their traditional powers to enact laws that made the condition of the freed people intolerable
  • longest amendment ever added to the const. the 14th
  • no change in the const. since the bill of rights has had so profound an impact on american life as the 14th
  • Radical Republicans, Sumner, saw reconstruction as a once in a lifetime opportunity to purge the republic of the legacy of slavery
  • equality was the radicals watchword
  • grant black men the right to vote
  • radicals did not constitute a majority
  • Johnson was deeply racist — conduct of the governments he had established in the south would eventually lead moderate republicans to embrace black suffrage
  • original const. said almonst nothing about the right to vote, leaving regulation of the suffrage in the hands of the states
  • nearly all republicans believed the the federal government must give substantive meaning to emancipation by defining and guaranteeing the freed peoples personal liberty, access to the courts, and ability to compete as a free laborer
  • jan 1866, 70 amendments were “pending”
  • joint committee on reconstruction, fifteen member body appointed
  • 3/5 clause was now inoperative because slavery was done
  • all blacks would be counted as part of each states population
  • congress considering two bills — civil rights act of 1866, rfirst law to declare who is a citizen of the US and specify rights all citizens are to enjoy
  • declared all persons born in the US, other than indians not taxed, and individuals subject to a foreign power to be citizens of the US
  • severed citizenship from race
  • applied not only to blacks but to virtually everyone born in the country
  • rights of free labor, but had nothing to do with political rights
  • civil rights of white americans became a baseline
  • no longer could states enact laws like the Black Codes
  • but the act left many questions unanswered — debate over the act became a full fledged examination of the meaning of equality
  • bill did create a significant enhancement of federal power — latent national presence within all the states
  • Johnson vetoed, but it overcame the veto
  • Johnson thought it was reverse discrimination, in todays terms, distinction of race and color is by the bill made to operate in favor of the colored and against the white race
  • ghosts of Johnson still haunt our discussion about race
  • april 1866 — Joint committee approved 14th amendment, in the senate they added birthright citizenship in both the nation and the individual states, the principle of
  • prohibited states from abridging the privileges or immunities of citizens depriving any person — a more expansive category that included aliens — of life, liberty or property without due process of the law, and denying any person the equal protection of the laws
  • virtually every person born the country is a citizen, regardless of race, national origin, or the political affiliation or legal status of ones parents
  • today, the US stands almost alone among industrialized nations in this
  • birthright citizenship remains an eloquent statement about the nature of american society — powerful force for assimilation of the children of immigrants, and a repudiation of a long history of racism
  • dramatic repudiation of the powerful tradition of equating citizenship with whiteness
  • slave children were now fully citizens of the nation — but the language was not fully coherent
  • language failed to clarify the status of Indians not residing on reservations
  • not until 1924 did congress extend birthright citizenship to native americans
  • the bar to persons born in asia becoming naturalized citizens remained in place well into the 20th century as well
  • second sentence of the 14th is couched in th language of general principles — privileges, immunities, due process, equal protection
  • none of the language in section 1 was self explanatory
  • was thought that the 14th could arm congress with the power to ienforce the bill of rights — privilege or immunities clause of the 14th applied not only to racial discrimination but to any state action that deprived citizens of essential rights
  • supreme court soon effectively reduced the amendments privileges and immunities clause to insignificance
  • final clause of section 1 also applied to all persons, not just all citizens — barred states from denying to any person the equal protection of the laws
  • equality to a constitutional right of all americans — const. a vehicle through which aggrieved groups and individuals who believe that they are being denied equality can take their claims to court — equal protection is race neutral
  • reconstruction was sa moment when the language of equality reverberated in public debate
  • protection was hardly self explanatory
  • over time the clause would become the vehicle for radically expanding the rights of all americans
  • in the context of violence sweeping the south, protection in the 14th (the word) conjured up not simply unequal laws but personal safety
  • court would apply a rigid understanding of state action to weaken dramatically the amendments impact
  • amendment asserted federal authority to create a new uniform definition of citizenship and announced that being a citizen carried with it rights that could not be abridged
  • modicum of equality, ultimately protected by the federal government
  • rights became attributes of national citizenship — introduced for the fist time a gender distinction in the const.
  • const. still does not include an equal rights amendment banning discrimination based on sex
  • status of women barely figured in these calculations
  • very language used by supporters of black male suffrage associated the right to vote with marital prowess and manhood
  • section 2 did not enfranchise black men — mandated a penalty for denying them the right to vote
  • section 3 — state governments in the south would be so constituted as to make federal intervention rare or necessary
  • 3 was meant to repent the rebirth of what republicans called the slave power and help bring into being a union of truly democratic states
  • try to ensure that states would act responsibly
  • states were most likely to infringe on americans fundamental rights
  • section 2 — automatic reduction of representation if states disenfranchised significant numbers of male voters — has never been implemented
  • section empowering congress to enforce its provision by appropriate legislation was in the amendment
  • democrats railed, white supremacy and the traditional power of the states to define and regulate the rights of their inhabitants
  • members of congress seems as anxious to point out what the amendment failed to accomplish as to what it did
  • failed to include black male suffrage, abolitionists condemned the amendment
  • ensuing months every other southern state, encouraged by Johnson, rejected the amendment by overwhelming margins
  • white southerners deemed it an unwarranted indeed outrageous interference in their states internal affairs
  • fall election of 1866 — republicans swept to an emphatic victory in all the northern sates
  • end of Johnsons plan of reconstruction
  • dec 1866 — congress enfranchised black men in DC and the western territories, suffrage a requirement for the admission of nebraska and colorado
  • reconstruction act of 1867 — ex confederate states other than tennessee, under temporary military rule
  • southern states were obligated to adopt new const. incorporations the right to vote regardless of race
  • required to ratify the 14th amendment
  • next two years, radical reconstruction would be put into operation — new north governments adopted const. the attempted to create the framework for democratic, egalitatian process
  • biracial governments were put in place — without the votes of black men in southern elections and legislatures, the amendment never would have become part of the const.
  • little elation greeted the 14th, unlike the 13th
  • compromise that seems to fully satisfy no one
  • federal government as the ultimate protector of their rights
  • radical reconstruction in 1867 — right to vote for blacks in the south inspired a wave of political mobilization without precedent in the regions history
  • const. meant equality, expansively definted
  • former slaves, self consciously viewed themselves as individuals newly invested with all the rights of the american citizen
  • suffrage — right to vote as the heart and soul of their freedom”
  • part of a larger aspiration to be treated as equal, a co worker in the kingdom of cluture
  • act of 1867 large majority of the country’s black men enjoyed their right to vote, but many did not
  • border states and Tennessee, smaller number of disenfranchised blacks in the north
  • amendment guaranteeing black voting righsthorughout the nation would solve these problems it seemed
  • issue of black voting fraught with political danger
  • Grant for Prez in 1868
  • congress sought to reassure uneasy northerners that they would not tamper with their states voting requirements declaring that the question of suffrage in all the loyal sates properly belongs to the people of those states (republican platform)
  • future of black suffrage became a major issues in the campaign, which witnessed some of the most overt appeals to racism in american history
  • dem platform assailed republicans for forcing negro supremacy upon the south
  • dem candidate for VP Francis Preston Blair JR charged that republicans had put the south under the rule of an alien race of semi barbarous men
  • republicans said little about black suffrage during the campaign
  • had to choose between an amendment establishing a uniform national standard that enfranchised virtually all adult male citizens or a “negative” one barring the use of race or other criteria to limit the right to vote but otherwise leaving qualifications in the hands of the states
  • first possiblitit represents a road not taken that would have barred the methods used by southern sates in the late 19th century to disenfranchise their black populations as well as most state voter suppression measures today
  • republicans differed sharply among themselves as to what restrictions on the right to vote were legitimate and how far the principle of equality actually reached
  • tradition of state control of voting requirements were deeply entrenched and many northern states did not wish to surrender that power
  • western members of congress gave voice to the regions strong anti chinese prejudices
  • nativism helped to undermine prospects for an affirmative” amendment
  • one further complication was that WV and TENN barred certain ex condederates from casting ballots a “positive” amendment would have restored their right to vote
  • adoption of a weaker version, restricted to eliminating racial barriers to voting, stemmed not from a limited commitment to black rights but to opposition to equality for others especially immigrants from China and Ireland
  • conviction that s simple and direct amendment was mostly likely to win ratification
  • members warned that the amendment could be rendered void via poll taxes, literacy tests, other ostensibly non racial requirements that in the south primarily effected blacks
  • 15th did not expand the rights of citizenship for all americans — impartial suffrage
  • amendment did not explicitly state that suffrage carried with it officeholding
  • door open for state suffrage laws that while on their face racially unbiased, disenfranchised the majority of black voters
  • affirmative language establishing a national right to vote had been rejected by a conference committee
  • failed to anticipate the proliferation of disenfranchisement laws
  • souths political leaders would not mind the fact that signifiant numbers of poor whites would lose the right to vote because of such laws
  • Vickers of maryland — color he declared was the mark of inferiority and whites should have the power to exclude other races from the ballot box
  • did get ratified, and congress required VA MISS TX to do so as a condition of readmission
  • TENN, rejected the amendment in 1869 — would ratify in 1997
  • ratification proved more problematic in the northern and border states than the south
  • marked a radical change in the political system
  • expanded the right to vote to include tens of thousands of previously disenfranchised black men and seemed to guarantee that if and when dems regained power in the south, black male suffrage would remain secure
  • because of the way it was written, the amendments purpose could be too easily circumvented by biased voter registration and criminal justice systems
  • southern states used nonracial requirements such as paying poll taxes and demonstrating the ability to understand provisions of state constitutions to strip black men of the right to vote
  • section 2 of the 14th provided that states could disenfranchise male citizens because of a criminal conviction without paying a representation penalty
  • after the end of reconstruction, southern legislature would greatly expand the number of crimes deemed to be felonies, and blacks would find themselves caught in the justice systems web far more frequently than whites
  • racism inherent in our police and judicial systems criminal laws have a disproportionate impact on black americans
  • in some states even those incarcerated for any misdemeanor, or in jail awaiting trial without having been convicted of any crime are effectively barred from voting because no provision is made for them to do so
  • all this would have shocked the congressman who voted for the 15th
  • still a remarkable achievement in the context — widespread celebration
  • American Anti Slavery Society now deemed its work complete, disbanded
  • amendment did not thing to enfranchise women
  • does not contain the world male — nothing in its language prevented a state from granting women the right to vote
  • Susan B anthony considered the amendment a humiliation
  • Cady Stanton gave voice to a miasma of racial, ethnic and class prejudice
  • during debates, petitions for women suffrage flooded into congress
  • most republicans refused to acknowledge that barring women from the suffrage contradicted their identification of voting as a fundamental right
  • slavery might be dead but a commitment to white supremacy was not
  • KKK spread after being founded in TENN soon after the War
  • extreme violence against anyone accused of flouting the conventions of white supremacy
  • governments found it difficult to suppress the violence
  • dramatically expanded the power of the fed. govt. to protect citizens against acts of violence that deprived then of constitutionally guaranteed rights — enforcement acts sought to employ federal power to remedy the breakdown of law and order
  • penalties for state officials who discriminated against voters on the basis of race
  • marshals arrested people — reenacted the civil rights act of 1866
  • second act — combating irregularities in voting in large cities
  • KKK act of 1871 — armed forces to suppress conspiracies, national government jurisdiction over crimes
  • Enforcement Acts brought the enhancement of federal power spawned by civl war to the outer limits of the const. revolution
  • 1871 and 2 Grant used the powers granted to him by the Enforcement Acts to crush the KKK
  • 1871–1873, federal prosecutors brought nearly 2500 criminals cases under the enforcement acts, mostly for conspiracy to hinder voting or to deprive a person of equal protection of the laws because of race — broke the KKK’s back
  • supreme court would spell disaster for black americans and for the reconstruction dream of a democratic society of equals
  • 1889 — NAACP published Justice and Jurisprudence — first sustained critique by black americans of the supreme court ruling related to the reconstruction amendments
  • fell to the court to construe the const. amendments
  • court played a crucial role in the long retreat from the ideals of reconstruction
  • persistence of federalism
  • for blacks, practical consequences were the same
  • court engaged a long process of definition not completed until the turn of the century
  • in almost every instance the court chose to restrict the scope of the second founding
  • court employed a state centered approach in citizenship matters and a nation centered approach in affairs of business
  • so long as disenfranchisement laws did not explicitly mention race, justices refused to intervene even as the vast majority of the souths african american men lost the right to vote
  • twenty four men served on the court between 1870 and 1900
  • most were mediocre who left little impact on the law, most were privileged, had made livings representing railroads, majority republicans, none had served in congress
  • preserving federalism traditionally and defending the rights of prperty
  • justices shared the belief that expansion of federal power had gone too far and that blacks must learn to stand on their own feet without national intervention on their behalf — views inevitably affected interpretation of the reconstruction amendments
  • outright racism became more and more prevalent in national culture and increasingly evident in the court
  • justices did not simply reflect popular sentiment — they helped to create it
  • most of them deliberated with little or no reflection on the actual consequences of their rulings for black americans
  • late 19th century decisions constitute a sad chapter in the history of race, citizenship and democracy in the US
  • Blyew v US — murder of four members of a black family in kentucky by two white men — kentucky still dow not allow blacks to testify in cases involving whites
  • murders were convicted
  • supreme court overturned the convictions
  • federalism above the protection of blacks — justices declared that only parties to the case, the defendants and the government were “affected”, not potential black witnesses and not the murder victims and their families
  • Slaughterhouse cases — aggrieved parties who were whites, not former slaves — majority what they wrote made the 14ths privileges and immunities clause almost meaningless by narrowing the meaning
  • Stephen Field wrote the minority — rights of property were of far greater concern to him that those of the former slaves
  • 14th interpreted as protecting corporations from such intereference
  • rights of citizenship now derived from the nation, not the states
  • had a deleterious effect — eviscerated the privileges and immunities clause so effectively that it ceased to have constitutional meaning
  • deprived a potential const. avenue for asserting claims for expanding rights
  • amendment implicitly confirmed womens subordinate political status (14th) — first section makes no mention of gender
  • Bradwell v Illinois — Myra Bradwell barred from the Illinios supreme court, court upheld the decision
  • why did butchers (Slaughterhouse) have a valid 14th amendment free labor claim and not Myra? nature and divine ordinance, justice bradley wrote
  • end of slavery had not altered natural distinctions between the sexes
  • southern reconstruction government took steps to expand women’s legal rights
  • issue of woman suffrage played a prominent role in reconstruction politics, however
  • Minor v Happersett, 1875 — women were citizens, but citizenship in the US had never carried with it suffrage
  • despite the amendments — states retained the power to regulate voting, except they could no longer deny it to black men
  • court would not interfere in matters it felt lay within the jurisdiction of the states
  • definition of rights was in flux
  • public rights proved highly controversial
  • shorn of its provisions regarding schools, churches and cemeteries, the civil rights act finally passed in 1875 — no dems voted in favor
  • mid 1870s, paramilitary anti reconstruction violence again reared its head — bands of undisguised men
  • federal government was ill equipped for prolonged intervention in the south
  • US vs. Cruikshank — armed mob of whites mrudered scores of black men — convictions of white men overturned
  • unanimous decision — postwar amendments had not significantly altered the structure of federalism
  • was said that the “victims” remained under the protection of the states not the federal government
  • murder and conspiracy remained under state, not national jurisdiction
  • encouraged further violence
  • murdereers had walked free
  • US vs. Reese — court overturned the convictions of kentucky officials who had conspired to prevent blacks from voting in a local election
  • Strauder vs. West va — court invalidated the muder conviction of a black man because of state law barring blacks from jury service
  • Ex paste virginia — court upheld the federal conviction of a state judge who had taken it upon himself to systematically exclude blacks from juries
  • decisions surprised and alarmed the white south
  • blacks remained almost entirely excluded from southern juries until well into the 20th century
  • ex parte siebold — justices upheld the conviction in federal court in baltimore election officials who stuffed ballot boxes and destroyed votes cast by blacks in congressional election
  • ex parte yarbrough — 1884, upholding the conviction in federal court of eight georgia men who assaulted a black man to prevent him from voting for a member of congress
  • bold assertion of national enforcement power
  • us vs. harris — 1883, unanimously rejected federal prosecution of members of a tenn mob that assaulted four imprisioned men, killing one — victims were white, not black
  • civil rights cases handed down in 1883 — declared most of Sumners Civil Rights Act unconstitutional on the grounds that it sought to punish discriminations by private businesses, not the states
  • lone dissenter was only one of the nine justices that owned a slave, John Marshall Harlan of KY
  • emerged as black americans most steadfast friend in the federal judiciary and the courts leading voice on behalf of racial justice in the late nineteenth and early 20th
  • said that the questions at hand were freedom and citizenship
  • presented a history lesson about the courts sorry relationship with slavery
  • confronted head on the state action doctrine
  • rights protected in summers law were civil rights, not social rights, and as such subject to regulation by congress
  • rights of the white race had long enjoyed protection by the state and federal govt.
  • civil rights cases inspired the most comment among newspapers and public
  • precedent for unsettling the entire legal states of the former slave population — the overall decision
  • equal public rights, once a fringe idea, had entered the republican mainstream
  • baltimores brotherhood of liberty published justice and jurisprudence in 1889–600 pages
  • explored the rights of public and private that constituted the privileges and immunities of citizens of the US which the amendment was meant to protect
  • Dems won in 1892 — repealed large portions of the three enforcement acts of reconstruction
  • emergence of US as an overseas imperial power raised new questions about the definition of citizenship and the scope of the rights protected by the 14th
  • Insular Cases 1901 — plenary power of congress over insular territories had few const. limitations
  • non white populations are unfit for participation in american democracy
  • Jim Crow — supreme courts retreat from reconstruction reached high tide
  • Plessy case — decision by Henry Brown blamed blacks for being oversensitive, so long as facilities were equal, separation was not a badge of inferiority even if the colored race chose to put that construction upon it
  • 14th equal protection clause did not apply
  • brown portrayed blacks as imagining themselves being dealt with unfair, but at the same time referred to whites as the dominant race
  • dissenter was Harlan who also shared prevailing anti chinese prejudices
  • in the view of the const. he wrote, in the eye of the law, there is in this country no superior, dominant ruling class of citizens, our const. is color blind
  • harlan correctly predicted that the decision would unleash a flood of statutes segregating every realm of southern life
  • Plessy v ferguson — at the time attracted little attention/harlans dissent solidified his rep in the black community
  • with the acquiescence of the court, 15th had been essentially nullified in the south
  • disenfranchisement was justified on a single ground — memory of the alleged horrors of reconstruction
  • result should have triggered enforcement of section 2 of the 14th which provided for an automatic reduction in congressional representations for states that deprived male citizens of the franchise — no action ever taken
  • millions of persons who enjoyed the right to vote suddenly had it taken away
  • justices refused to intervene in MISS disenfranchising policies
  • Giles v harris — oliver wendell holmes, threw up his hands and described the court as impotent, said there was nothing the justices could do to help blacks in alabama to vote, states rights — most prominent stain on his reputation
  • Hodges vs, us — 1906, court seriously weakened the civil rights act of 1866
  • key elements of the second founding including birthright citizenship equal protection and the right to vote remain hotly contested
  • still very little 13th amendment jurisprudence/ nor has congress proved willing to enact legislation under that amendments enforcement section
  • 13th remains essentially a dead letter
  • latent power has almost never been invoked as a weapon against the racism that forms so powerful a legacy of slavery
  • right to vote remains the subject of bitter disputation
  • 2013 — court invalidated the voting rights act requirement that certain jurisdictions with long histories of racial discrimination in voting obtain prior federal approval before changing voting rules
  • alabama immediately took the decision as a green light to enact laws meant to restrict the voting population
  • photo ID, closed drivers license offices in counties with highest percentage of blacks in the population
  • when conservative jurists discuss federalism, they almost always concentrate on the idea of 18th century framers, ignoring those architects of reconstruction
  • incorporation — requiring states to abide by the protections of the bill of rights has essentially been achieved
  • states are now required to act in accordance with the fundamental liberties enumerated in the bill — expanding ability of all americans to protect their civil liberties against abridgment by state and local authorities
  • when it comes to the status of blacks, the 14th promise has never been fulfilled
  • court has never repudiated the state action doctrine
  • 2000 — us vs. morrison — congress lacks power to provide a remedy in federal courts for violence against women that is not state sponsored
  • elevation of the commerce clause into the “charter of human rights”, a way of compensating for the courts cramped view of the reconstruction. amendments has made the judiciary look ridiculous
  • state action interpretation of the 14th can be debilitating
  • equal protection — limited when it comes to blacks
  • RBG — applied the 14th to discrimination based on gender — underpinned an 1982 decision barring states from excluding the children of undocumented immigrants from public schools
  • in tandem, wit the due process clause, formed the const. bassi for the 2015 ruling requiring states to allow gays to marry
  • court has been more sympathetic to white plaintiffs complaining of reverse discrimination
  • long retreat from race conscious efforts to promote equality
  • project of equal citizenship remains unfinished
  • however flawed, the era that followed the war can serve as an inspiration for those striving to achieve a more equal more just society
  • appendix — what is freedom
  • 1865 — sherman issued Special Field order 15 — set aside the sea islands and a large area along SC and GA coasts for settlement of black families on forty acre plots of land/40 acres and a mule
  • by june, some 40K had settled on land
  • meaning of freedom
  • blacks understanding of freedom was shape by their experiences as slaves and their observation of the free society around them
  • freedom subtly altered relationships within the family
  • blacks abandoned white controlled religious institutions to create churches of their own
  • blacks of all ages flocked to the schools established by northern missionary societies l
  • nations first black colleges
  • free blacks and emancipated slaves claimed a place in the public sphere
  • ideas of freedom — directly related to land ownership
  • for whites, freedom, no matter how defined, was a given, a birthright to be defended
  • for blacks, it was an open ended process
  • white southerners reacted — nearly 260K men died for the conffederacy — more than 1/5 of the souths malle adult white population
  • planter families lost life savings
  • republican north tried to implements its own vision of freedom — princi9plle of free labor
  • Freedmens Bureau 1865 to 1870
  • coordinated and helped to finance the activities of northern societies committed to black education
  • control of hospitals, provided medical care, economic relations were problematic
  • 1865 — Johnson ordered nearly all land in federal hands returned to former owners
  • army forcibly evicted blacks who had settled on shermans land
  • land was essential to the meaning of freedom
  • no alternative but to work on white owned plantations, often for their former owners
  • task system — supervised wage, labor, sharecropping — more and more oppressive
  • plight of the small farmer was not confined to blacks
  • growing of cotton and pledge a part of a crop as collateral — crop lien
  • plant cotton to obtain new loans
  • sharecroppers now rented land owned by others
  • southern cities experienced remarkable growth after the war
  • reconstruction brought about profound changes in the lives of southerners, black and white, rich and poor
  • making of radical reconstruction
  • johnson — lonely, stubborn man, was intolerant of criticism and unable to compromise
  • fervent believer in states rights, was a crazy racist
  • granted the new government free hand in managing local affairs
  • white voters returned to prominent confederates and members of the old elite to power
  • Black Codes — violated free labor principles
  • few groups of rebels in history have been treated as leniently than the defeated confederates
  • inabilitiy of the souths political leaders to accept the reality of emancipation
  • radicals fully embraced the expanded powers of the government born during the war
  • most republicans were moderates, not radicals
  • today, legal doctrine of birthright citizenship sets the US apart
  • Burlinggame Treaty — reaffirmed chinas national sovereignty, provided reciprocal protection for religious freedom and against discrimination for citizens of each country emigrating or visiting the other
  • well into the 20th, asian immigrants could not become citizens, but their US born children automatically did
  • 1869 — Wyoming, extend right to vote for women, entered the union in 1980, fist state since NJ n the late 18th century to allow women to vote
  • radical reconstruction in the south
  • some 2K blacks occupied pubic offices during reconstruction. represented a fundamental shift of power in the south and a radical departure in american government
  • reconstruction governments greatest achievement lay in establishing souths first state supported public schools, served both black and white kids
  • new governments pioneered civil rights legilastion
  • made it ille3gal for railroads hotels and other insistutiosn to discriminate on the basis of race
  • standard of equal citizenship and a recognition of blacks right to a share of public services
  • economic development in general remained weak
  • few southern investors ventured to the reconstruction south
  • revitalized southern economy failed to materialize and most blacks remained locked in poverty
  • public facilities were rebuilt and expanded school systems established and legal codes purged of racism
  • measure of how far change had progressed that the reaction against reconstruction proved so extreme
  • overthrow of reconstruction
  • souths traditional leaders bitterly opposed the new governments
  • corruption did exists but it was confined to no race religion or party
  • poor whites turned against republicans when it became clear that their economic situation was not improving
  • most basic opposition was that most white southerners could not accept the idea of former slaves voting holding office and enjoying equality before the law
  • bloodiest act of violence during reconstruction. took place in colfax LA 1873 — armed whites assaulted a town with a small cannon
  • scores of former slaves were murdered including 50 members of black militia units after they surrendered
  • 1870’s — northerners increasing felt that the south should be able to solve its own problems without constant interference from washington
  • blacks should rely on their own resources not demand further assistance
  • 1872 -liberal republicans established, nominated horace freely of the new york tribune
  • switched to a dem candidate, lost to grant
  • his campaign however was a new policy for the south
  • resurgence of racism in the north — offered blacks alleged incapacity as a convenient explanation for the failure of reconstruction
  • 1873 — severe depression
  • Slaugherhosue cases — 1873 most of the rights of citizens it declared, remained under state control
  • us vs. cruikshank — court gutted the enforcement act
  • dems by mid 70’s were victorious, called themselves Redeemers, since they claimed to have redeemed the white south from corruption mis government and northern and black control
  • 1876 — Hayes vs. Tilden for prez
  • behind the scenes negation took place — hayes reps agreed to recognize dem control of the entire south and to avoid further iintercerntion in local affairs — pledged that hayes would put a southerner in the cabinet position of postmaster and work for federal aid to texas and pacific railroad
  • dems promised not to dispute hayes right to office and to respect the civil and political rights to blacks — bargain of 1877
  • hayes ordered soliders to return to barracks — dems didn’t live up to pledge to recognize blacks as equal citizens
  • how do we, in a modern society, define the economic essence of freedom

I love books, I have a ton of them, and I take notes on all of them. I wanted to share all that I have learned and will continue to learn. I hope you enjoy.

I love books, I have a ton of them, and I take notes on all of them. I wanted to share all that I have learned and will continue to learn. I hope you enjoy.