Black Rights in the Reconstruction Era

Black Rights in the Reconstruction Era

Black Rights in

the Reconstruction Era

Vanessa Holloway

Hamilton Books

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ISBN: 978-0-7618-7035-7 (cloth : alk. cloth)—ISBN: 978-0-7618-7036-4 (electronic)

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Printed in the United States of America

Also by Vanessa Holloway

Getting Away With Murder: The Twentieth-Century Struggle for Civil Rights in the U.S. Senate (2014)

In Search of Federal Enforcement: The Moral Authority of the Fifteenth Amendment and the Integrity of the Black Ballot, 1870–1965 (2015)

Preface

Most observers and historians rarely acknowledge the history of civil rights predating the twentieth-century. The book Black Rights in the Reconstruction Era pays significant scholarly attention to the intellectual ferment—legal and political—of the nineteenth-century by tracing the history of black Americans’ civil rights to the postbellum era. By revisiting its faulty foundational history, the book lends itself to show that, after emancipation, national and local struggles for racial equality had led to the encoding of racism in the political order in the American South and the proliferation of racism as an American institution. The book draws upon a host of historical, legal, and philosophical studies as well as legislative histories to construct a coherent theory of the law’s relevance to the era, questioning how the nexus of race and politics should be interpreted during Reconstruction. Anchored in the Reconstruction Amendments, Supreme Court decisions and landmark statutes of the 1860s and 1870s—the Black Codes, the Freedmen’s Bureau, the Civil Rights Act of 1866, the Reconstruction Acts, the Enforcement Acts, and the Civil Rights Act of 1875—Black Rights in the Reconstruction Era offers a new perspective on the political history of law between the years 1865 and 1877. It is predominant in the ongoing debates on social justice and racial inequality.

Vanessa Holloway, November 2017

New York City

Acknowledgements

A book that takes many months to research and write incurs many debts. Although the writing of this book was a solitary business, the efforts were sustained by many academic dialogues with friends and colleagues who contributed to its final shape and tone. My appreciation to all who encouraged and supported me as well as provided practical and technical help.

Introduction

Unwelcome Changes

Reconstruction did not fail; in regions where it collapsed it was violently overthrown.[1]

The legacy of racial prejudice, civil and voting rights violations, and power politics is found in an era that is slow to enter public consciousness. There is no period in history with a wider gap between scholarly understanding and public consciousness than between 1865 and 1877, the Reconstruction era.

The central story of Reconstruction takes place in the defeated Confederacy and in the wake of a former slave’s freedom. Before the terror and travail in this era, one question surfaced: what is to be done with the newly freed slaves?

The leading motive of the reconstruction process had been to ensure to the freedmen their civil rights. Hopes to build a new South out of the ashes of the old plantation order involved providing relief to blacks deprived of their civil rights advances by state actors and to counter the condoned and perpetrated reign of terror that sought to reverse their legal gains.

Throughout localities, blacks struggled with their political and civil rights to vote, sue, and testify. The era’s legal authority established a method of federal intervention; however, a problem that surrounded all the legal changes was enforcement. That is, although progressive legislation was enacted to curtail the authority of the states, the laws had been abandoned by no enforcement.

The series of laws were intended to elevate blacks, but public and private actors alike violated the dictates of equality legislation with impunity. Without federal enforcement, the states had little incentive to abide by subsequent federal policy. The inescapable truth is that government policy at state and local levels violated federal laws mandating equal protections with the purpose of establishing a pernicious racial caste system. Put differently, laws that whites would have to obey were anathema to them. It would be another eight decades before the states yielded to interracial cooperation.

Hence, blacks came to recognize that while slavery had been abolished, their newly secured freedom was at risk. They found it necessary to protect themselves from the racist backlash against their rights. This meant that efforts to impose federal solutions on localities to guarantee black rights were unsuccessful. However, the long-term survival of some of the era’s legal reforms foreshadowed the rise of the 1960s civil rights movement.

Reconstruction’s early years (1865–1871) consisted of a series of landmark laws to create an interracial democracy in the former Confederate states. The post-war political dominance of Republicans, many of them former Whigs who favored a strong central government, addressed freedom, citizenship, and black suffrage by legislating the Thirteenth, Fourteenth, and Fifteenth Amendments to the Constitution of the United States.

In a liberal, Republican-led government, these Reconstruction Amendments granted former slaves rights and privileges. The issuance of the amendments was the attempt to change public policy. Specifically, the laws gave constitutional fulfillment to the emancipation promise. The laws meaningfully altered the political status of blacks and reinforced constitutional equality that guaranteed blacks’ rights. However, by 1875, Republicans dissipated after defeat of the Democratic Party.

Under Democratic leadership, Reconstruction efforts were paralyzed at both the national and local level.[2] Democrats were united against federal race reform and influenced by local constituencies to challenge the laws’ constitutionality.[3] State legal institutions invented categories of race and codified white privilege. Insisting on reestablishing antebellum policies of white supremacy, whites rejected democratic racial reform, which undermined the campaign for civil equality.

By nullifying federal policies in practice, their goal was to repress blacks, who they felt had gained too much, and reclaim what they believed to be a white-only government. The reinstatement of state-level politics allowed state governments to implement a distorted and racist brand of justice. Southern statesmen frequently led coups and openly contested ideas about democracy, citizenship, class differences, and racial hierarchies.

Even though economic reforms, redistribution of land, and enforcement of laws would have assisted in the growth and strength of the black community that change would never be accepted by revanchist white supremacists. The postwar response of whites to emancipation involved regaining authority and claiming their leadership over blacks, whom they perceived to be inferior. They used legal loopholes and acts of domestic terrorism to deny blacks an equal place in public life.

As the era progressed, growing racism over blacks gaining legal rights caused state and local governments to create laws that circumvented black economic and political participation. In itself, racism manifested through state legislation permitted whites to violently assert that its society should be restructured hierarchically under an ideology of inherent racial superiority and be predicated upon a belief in inherent racial difference.

Using campaigns of violence, white communities banded together to restore white supremacy and, inspired by racism, they successfully took control of their heavily Democratic state governments.[4] As a result, whites unwelcomed societal transformations and followed the Democratic Party, which stood for as little change as possible.[5]

Structural commitments to impoverishing and immobilizing blacks in waves of state laws reflected Congress’s obligation to respond to the widening inequality between the two races.[6] It exercised little enforcement by raising issues of federal overreach. Even though an extended military occupation and access to the ballot box would have probably been the best strategy to combat white oligarchy, Congress became less involved in limiting state powers by endorsing the racist rhetoric of white over black. The federal government did not uphold and enforce the principles of democracy and equality as guaranteed in the Constitution.[7] Therefore, the authority for ensuring black rights was left to states’ discriminatory governments and local public sentiment that legally enforced white supremacy.[8]

Although blacks trusted the federal government to serve their best interests by enforcing their civil rights and liberties, the outcome proved contrary to what they had hoped for. As a result, inclusion and equality for blacks were unattainable during the era.

Despite Reconstruction’s initiatives, institutional racism and discrimination is a persistent thread in the garment of African American history. Historian Donald Nieman once wrote, For much of the nation’s history, law has been a tool of oppression, relegating blacks to a subordinate position in American society, depriving them of basic human rights, and denying them access to economic resources.[9] Racism and discrimination in government policy has played a consistent and uniform role in perpetuating poverty and creating disadvantage among blacks. As it became a core system value protected by constitutionalism, the effects of racism after the Civil War impeded the upward mobility of blacks. That is, attacks on black advancement limited their progress. As further proof of this, the second Reconstruction in the twentieth-century was a grassroots civil rights movement, which attempted to reinstate the rights of blacks that should have been upheld after the Civil War.[10] When Reconstruction collapsed in ignominy and succumbed to political sabotage and terrorism, it functioned as a precursor to the movement that brought new strength to the Constitution.[11] It was a response to the systematized violence and the legalized discrimination that blacks experienced from the nineteenth-century. For almost a century after the Civil War, blacks and whites were divided into sections: those who believed in civil rights and freedoms for all citizens and those who wanted to recreate the old slave aristocracy. Blacks’ acceptance as citizens would not come easily or without violence. The unfortunate result of this course of events is that the nation turned into a protracted and racialized war that lasted into the 1960s, where inequality remained a pernicious reality. Irrespective, whatever else may be said about the era, the argument presented here is that national and local struggles for racial equality during Reconstruction had led to the encoding of racism in the political order in the American South and the proliferation of racism as an American institution.[12]

Much has been written about Reconstruction policies as well as the constitutional revolution that occurred after the Civil War. Scholars’ opinions vary widely. Eric Foner developed a comprehensive history of the Reconstruction time period in his book, Reconstruction: America’s Unfinished Revolution, 1863–1877.[13] Foner described the active involvement of blacks pre and post-Civil War in their efforts to achieve equality. Blacks did not act passively during Reconstruction; rather, they helped to bring about change. Harold Hyman and William Wiecek’s Equal Justice Under Law: Constitutional Development, 1835–1875 examines the evolution of the Constitution in regards to protecting the rights of former slaves.[14] During Reconstruction, Southern society was unwilling to accept equal rights for former slaves, even though the Constitution provided protection under the Thirteenth, Fourteenth and Fifteenth Amendments. Hyman and Wiecek contend that the nineteenth-century provided equal justice for blacks under law, but the law was difficult to enforce. Therefore, the reality of equality for blacks was not achieved by 1875. William D. Araiza, Enforcing the Equal Protection Clause: Congressional Power, Judicial Doctrine, and Constitutional Law offers an understanding of Congress’s enforcement power and its relationship to the Court’s claim to supremacy when interpreting the Constitution. G. Edward White, Law in American History, Volume II: From Reconstruction through the 1920s connects the evolution of law to the major political and social developments of the era. Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights explores the implications of the changes brought by the Civil War by bringing legal history into dialogue with the scholarship of other historical fields. Garrett Epps, Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America studies the Thirty-ninth Congress and the story of the Fourteenth Amendment’s creation. Timothy S. Huebner, The Southern Judicial Tradition: State Judges and Sectional Distinctiveness, 1790–1890 analyzes six chief justices roles and their opinions related to cases involving federalism and race. Christian G. Samito, Changes in Law and Society during the Civil War and Reconstruction: A Legal History Documentary Reader shows the legal changes that occurred during the Civil War era and highlights how law, society, and politics were inextricably mixed. Michael Les Benedict, Preserving the Constitution: Essays on Politics and the Constitution in the Reconstruction Era confronts the constitutional politics of the period from the end of the Civil War until 1877. Joseph A. Ranney, In the Wake of Slavery: Civil War, Civil Rights, and the Reconstruction of Southern Law exposes how complex and fragile the postwar recovery was. Robert J. Kaczorowski, The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 looks at the ways in which federal judges, attorneys, and other law officers defined a new era of civil and political rights in the South and implemented the Thirteenth, Fourteenth, and Fifteenth Amendments during Reconstruction. Herman Belz, A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861 to 1866 investigates how laws, policies and constitutional amendments defining and protecting the personal liberty and civil rights of blacks were adopted during the Civil War. James Edward Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment make clear that amidst all the conflict of the period, the commands of the Fourteenth Amendment were widely and uniformly understood.

The historical discourse of Reconstruction demonstrated that claims to black rights without enforcing them or to provide concrete economic and political reforms were detrimental. By uncovering key legislation, this legal analysis asks: Could the federal government impose liability on state and local levels of the government? To what extent should the federal government intervene in the states in order to guarantee civil rights? How is the nexus of race and politics during Reconstruction to be interpreted? Black Rights in the Reconstruction Era’s objective is to systematically go through the laws; discuss their origins, meanings, and court interpretations; and integrate them into a historical narrative. Equally important, the focus is on blacks who were at the center of post-war reform and the racist motivations to neutralize their advancements after the Civil War. The book is aimed at all historians, jurists, lawyers, political scientists, government officials, and students, who in one way or another are responsible for understanding and interpreting blacks’ rights in the past. The Introduction assesses the changes in federalism due to Congress’s need to secure citizenship and legal rights for blacks. Part I identifies early legal reform combatting the effects of racism in its historical context, noting the exception of the Black Codes, which sought to define the legal status of blacks as permanently inferior. Part II delineates the additional legal sources that most affected developments in government power, equality, and individual rights.

Notes

1. Douglas R. Egerton, The Wars of Reconstruction: The Brief, Violent History of America’s Most Progressive Era (New York: Bloomsbury Press, 2015), 19.

2. Michael Les Benedict, Equality and Expediency in the Reconstruction Era: A Review Essay, Civil War History 23 (1977): 322–35.

3. Albert. V. House Jr., Northern Congressional Democrats as Defenders of the South During Reconstruction, Journal of Southern History 6 (1940): 46–71.

4. James E. Bond, No Easy Walk to Freedom: Reconstruction and the Ratification of the Fourteenth Amendment (Westport, Conn.: Praeger, 1997), 3.

5. Alfred Stone, Post Bellum Reconstruction: An American Experience,