It was immediately evident after the Civil War that assistance would be needed from the North for the South to rebuild not just physical infrastructure but a whole new legal and social system. Reconstruction governments established public schools, passed laws to allow plantation laborers more power, made taxation more equitable, and outlawed racial discrimination.
After the Civil War, the Thirteenth, Fourteenth, and Fifteenth amendments were passed to correct the failure of the Constitution and to give the basis of law to “reconstruct” the slave states. The Thirteenth outlawed slavery, the Fourteenth granted citizenship along with equal protection and due process, and the Fifteenth gave former enslaved male the right to vote.
The post-war Congress that had Black representation from the South, passed five civil rights statutes that were more advanced than those we have today. The laws were: the Freedmen’s Bureau Act of 1866 (establishing a social welfare agency for newly freed slaves), the Civil Rights Act of 1866 (all persons born in the U.S. were citizens with all citizen rights), the Civil Rights Act of 1870 (deprivation of rights was a criminal offense), the Civil Rights Act of 1871 (provided for civil and criminal penalties for violations), and the Civil Rights Act of 1875 (equal access to all places of public accommodation) with federal courts having exclusive jurisdiction. It didn’t last long.
The 1876 presidential election pitted Democrat Samuel Tilden, Governor of New York versus Republican Rutherford Hayes, Governor of Ohio. Remember at that time, the Republicans were the party opposing slavery and the Democrats favored it and were in power in the South. By midnight of election day, Tilden had 184 of the 185 votes he needed in the electoral college and a lead in the popular vote. The Republicans refused to accept it (as then, like now) and accused Democrats of intimidating and bribing African American voters. South Carolina, Florida, and Louisiana submitted two sets of election results with different results. The Oregon governor (when Oregon was the Mississippi of the West) replaced a Republican elector with a Democrat thus challenging that result too. (Sound familiar?)
To resolve the dispute, Congress set up a commission. A deal was cut that the Democrats would accept Hayes election if the Republicans withdrew all federal troops from the South, thus allowing Democrats – who swore they would respect the civil and political rights of African Americans – to rule. Hayes also had to name a southerner to his cabinet (he did) and give money to Texas for a railroad line (he didn’t). He promised and was then awarded all contested states votes thus giving him 185 to Tilden’s 184. Two months later, Hayes withdrew federal troops, Southern Democrats now controlled all the seditious states, and Reconstruction was over.
The Civil War ended in April 1865. By December 1865, the Ku Klux Klan formed with many Confederate veterans. By 1870 it existed in every southern state and a campaign of intimidation and violence began. The economic depression in the South after the war combined with Democrats (then supporting slavery) winning control of the House of Representatives in 1874 accelerated the end of trying to rebuild a more just South.
Congress passed three enforcement acts in the KKK Act of 18771 to curb the Klan but it did not work. The legislation survives today in 42 USC 1981 et seq. The Klan declined in the late 1880s and then re-emerged in in the 1920s. At its peak, it had over 4 million members. The Klan was also against Jews, Catholics, and foreigners. The Klan disbanded in 1944 but then re-emerged again in the 1960s to counter the civil rights movement. In 2016, the Anti-Defamation League estimated membership around 3,000 and the Southern Poverty Law Center estimated it at 6,000.
How the Supreme Court helped to destroy Reconstruction.
After Congress passed laws to enforce the three new Constitutional amendments, the Supreme Court got busy declaring the laws unconstitutional.
In “The Civil Rights Bills” of 1866, one provision gave jurisdiction to the circuit court to enforce the requirement that African Americans be able to sue and testify in court. But in Blyew v. United States (1871) the Supreme Court said that the law only protects those cases in which African Americans are parties in the case; not witnesses or victims. In Blyew, two white men murdered five people in a household. Two children escaped out the window and wanted to testify that they had seen who did it. They were not allowed to testify because Kentucky had a law that African Americans cannot testify when the accused is white. The men went free.
In the Slaughter-House Cases, (1872), that ever law student struggles over, the Supreme Court said that government protection, the right to possess property, and to obtain happiness and safety was a right of people long before the U.S. ever existed so the government cannot give or take those rights – they belonged to the states – not even the people.
The Slaughter-House cases were about a law passed by Louisiana in 1869 that a corporation, created by the legislature, had the exclusive right for 25 years to have and maintain a slaughter house and all that goes with that within three parishes. It restricted everyone else and required them all to do business with this slaughterhouse where they could of course charge fees. The court held that monopoly was all right so long as prices were reasonable, and the corporation had a duty to be reasonable because it was a police regulation for the health and comfort of people.
The court reasoned that the Thirteenth Amendment denounced a status (slavery) but did not extend assistance to its victims. After all, others were slaves too e.g. the Chinese. They too had to carry papers showing they had the right to be where they were. Therefore, no positive actions were needed for those victims – a sentiment very much echoed in the SFFA v. Harvard (2023) decision to stop “helping” the victims of slavery. The ruling eliminates the argument that the “indicia of slavery” and other “badges” of slavery were also to be eliminated so the victims could assimilate.
The court said there is no “right” to work at a particular profession free from harassment by others. The duty of protecting citizens lies with states (and since the South had no intention of protecting former slaves, they were on their own). The court argued it was not the intention of the Thirteenth Amendment to make any wrong done to a free Black that would have been legal under slavery a crime. After all, slavery could include Natives enslaving Blacks or Blacks enslaving whites for heavens sakes.
One of the court’s most cringe worthy arguments was that at the end of the Civil War, the U.S. could have determined that all enslaved people were aliens and treated them under that system. Or they could have said they were wards of the court like Native tribes that needed to be “cared for.” The U.S. did not do that. It said the formerly enslaved were citizens. Therefore, those citizens are the same as everyone else and free to make their own way or not – even though they are severely handicapped to start with! You want equality? All right, we’ll give it to you in spades – you are free to jump in the dog race like everyone else – including those centuries ahead of you and those who have been given every advantage to win that race. Now let’s see how you fare. The trouble is that when they did “fare” their successes were destroyed i.e. Black Wall Street or Rosewood, FL or stolen or hidden.
The court determined that the Privileges or Immunities Clause of the Fourteenth Amendment is limited to federal citizenship rather than extending to state citizenship. So freed slaves had protection only against the federal government not against the states.
The court argued that the state had this power before the 13th and 14th amendments were passed so still do. That argument makes no sense as slavery was legal before that time too and after it was not. The court said the main purpose of all the three last amendments was the freedom of the African race, the security and perpetuation of that freedom, and their protection from the oppressions of the white men who had formerly held them in slavery. Today’s court has ignored that saying instead that it wasn’t just meant for the enslaved. AFFS v. Harvard said “citizens” in the 14th Amendment applied to all not just Negroes.
The court did say that while the 14th was primarily focused on African slavery it equally forbids Mexican peonage or the Chinese coolie trade when they amount to slavery or involuntary servitude, and the use of the word “servitude” is intended to prohibit all forms of involuntary slavery of whatever class or name.
Likewise the 14th amendment was primarily intended to confer citizenship on the “negro race” (sic) and define a citizen of the U.S. but also differentiate between a citizen of the U.S. and a citizen of a state. The privileges and immunities clause only applies to citizens of the U.S. not citizens of states. Thus the Slaughter-House cases left the freed slaves to the tender mercies of the Southern authorities.
In a United States v. Cruishank, (1875), the Supreme Court said the Fourteenth Amendment adds nothing to the rights of one citizen against another. It only applies to keep the government from encroaching on your rights. The court relied on Minor v. Hoppersett, that said under the “privileges or immunities” clause, women did not get the right to vote because that was up to the states to decide and since women never had the right to vote, the Fourteenth gives them nothing.
Nor does the Fifteenth Amendment expand rights because states determine who can vote in that state so if they give the right to vote, they cannot discriminate. But if they don’t, oh well. Though the amendment allows a reduction in representation for not allowing Black men to vote, that provision was never utilized. This distinction continues today where in Arizona certain persons can vote only in the federal elections and not for any state candidates because while they meet the federal requirement to vote, they may not meet the state requirement. This is squarely aimed at immigrants.
Three years later, in United States v. Reese, (1875) once again, the court said that the states determine who can vote and only if there is discrimination in that, does the Fifteenth Amendment apply. But the Fifteenth Amendment does not confer the right of voting; states do that.
The issue in Reese was that an election inspector at a municipal election refused to receive or count the vote of an African American. Since Congress did not say it was a crime to refuse to count the vote, the court ruled there is no jurisdiction in the federal court. The Fifteenth declared a right only if granted by the state.
On January 22, 1883, the U.S. Supreme Court in United States v. Harris dismissed indictments against a Tennessee sheriff and other white men accused of attacking four Black men and killing one. Federal prosecutors had brought criminal charges against Sheriff Harris and his accomplices under the Force Act of 1871, commonly known as the Ku Klux Klan Act or the Civil Rights Act of 1871.
The Court held that the Force Act was unconstitutional because the Fourteenth Amendment limited Congress to taking remedial steps against state action that violated the Fourteenth Amendment and applied only to acts by states, not to acts of individuals, even though the sheriff was clearly a governmental official.
The so-called “Civil Rights Cases” (1883), focused on the public accommodation provisions of the first set of civil rights laws. The defendants had denied access to a hotel, a theatre, and a train car where they separated a married couple because he was white and she Black so they must, in the minds of the Southern authorities, be together for an “improper purpose.”
The court ruled that invasion of individual rights is not the subject-matter of the amendments. Congress cannot pass municipal or state law so unless the violation is done by the state, once again there is no remedy.
U.S. law (common law) is primarily based on negative rights i.e. the government or a person may not do something whereas European law (civil law) is primarily based on positive rights i.e. the government must do this or that. So the court said the Civil War amendments could only prohibit the state from doing things but not compel them to do anything nor could the law apply to non-state actors. So if states didn’t pass any law directly in violation of the federal law, they were home free. That left Black victims with no remedy.
The Supreme Court admitted that state laws that prohibit Blacks on juries can be thrown out but no state law at that time said a Black person could not sit at a Woolworth lunch counter. In the court’s view, so long as a state did not pass a law specifically denying African Americans a right, they were good to go.
However, there was a pinprick opening. The court said the law did apply to “… customs having the force of law, which sanction the wrongful acts specified.” That pinprick became a wedge became an explosion in the hands of Pauli Murray, Charles Houston, and Thurgood Marshall in the coming decades.
In Hodges v. United States, 1906, the Supreme Court reiterated that The Fourteenth and Fifteenth Amendments operate solely on state action not on individual action. Unless the Thirteenth Amendment vests jurisdiction in the national government, the remedy for wrongs committed by individuals on persons of African descent is through state action and state tribunals. This left the fate of African Americans again solely in the hands of Southern courts. That did not go well.
In Hodges, the issue was a group of Black laborers and workman who had signed contracts at a local business. A group of whites brandishing guns conspired to prevent them from working or getting paid. The whites were found guilty at the circuit level, but it was overturned by the Supreme Court saying that the U.S. had no jurisdiction because the post war amendments only applied to the state and not to the individuals. Here, the complaint was only against these individuals.
For thirty-five years, the Supreme Court nullified the acts of Congress that tried to implement the Civil War Amendments. The federal anti-Klan statue, 42 U.S.C. 1983, is one of the few that remain today from those years. The second Civil Rights Acts passed in the 1960s were not as strong as the first ones the Supreme Court massacred.
In The Civil Rights Cases the court lectured Black plaintiffs:
When a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men’s rights are protected.
We hear those very same arguments today whenever any persecuted group seeks equality. One of the enduring legacies is that somehow civil rights are “special rights” and that no matter how badly you were treated before, you are not a “special favorite of the law” and don’t ask for any recompense, just move on.
The 14th Amendment did not lead to freedom for enslaved peoples nor the 15th Amendment to Black men voting.
Prior to the Civil War, Dred Scott v. Sandford (1857) held that Americans descended from Africans could not be citizens of the United States and Blacks had no rights that whites needed to pay attention to. The decision outraged abolitionists, who saw the Supreme Court’s ruling as a way to stop debate about slavery in the territories.
In 1890, Louisiana passed a law forbidding the mixing of races in public rail cars – they could be separate, but they had to be equal. A case was set up with a man who looked very white but was, under the law, Black. The Supreme Court to its shame upheld the law of separate but equal in Plessy v. Ferguson which was overturned in 1954 in Brown v. Board of Education.
After the Supreme Court ruled in Slaughter House and against the first Civil Rights Act, every Southern state redrafted its constitution to exclude Blacks. They put in reading tests, they put in tests to interpret the state constitution (whites only had to read a simple passage). In Louisiana in 1897 there were 130,000 African Americans registered to vote; in 1900 there were 5,000. (Goldstone, Lawrence, Inherently Unequal: The Betrayal of Equal Rights by the Supreme Court, 1865-1903.)
The Supreme Court interpreted the 15th amendment narrowly based on intent not on effect and allowed dramatic voter suppression not only of Blacks but of poor whites too. The 24th amendment was passed in 1964 to prohibit a poll tax or any other tax that would prohibit someone from voting for federal office – but still it did not apply to the states. Congress then passed the Voting Rights Act in 1965 to finally control the states.
But in 2012 the Supreme Court began its assault on the Voting Rights Act. In Shelby v. Holder the Supreme Court said that since Congress passed the Voting Rights Act in 2006, things had changed and we could not assume the same discrimination – though legions of experts and thousands of pages of studies said otherwise. They hrew out section 2 that required that states known to have discriminated in the past must pre-clear any changes in their voting rules. After that ruling, those very states immediately passed new laws to discriminate. Congress has attempted to rectify this injustice by passing the John Lewis Voting Rights Act but have not so far succeeded.
In 2023, the U.S. Court of Appeals for the 8th Circuit in Alabama that the Voting Rights Act did not give private plaintiffs the ability to sue under §2 of the Voting Rights Act. This absurd decision is now at the Supreme Court that will have another opportunity to undermine the Second Reconstruction by allowing only States to sue knowing full well the Southern States will not thus leaving the Black residents defenseless once again.
The movement of the Supreme Court toward constitutional protection.
In Guinn v. United States (1915) the Supreme Court interpreted the Fifteenth Amendment more broadly and overturned grandfather clauses in Oklahoma. Texas held “party primaries” that excluded the uninvited including Blacks and since the Democratic party was the only party in Texas then, it effectively cut Blacks out of selecting any representatives. It took nearly 25 years of litigation to overturn that.
In Buchanan v. Warley (1917) a city ordinance in Kentucky forbid colored persons from occupying houses as residences, or places of abode or to publicly assemble, on blocks where the majority of the houses are occupied by white persons for those purposes, and in like manner forbidding white persons when the conditions as to occupancy are reversed. The court held that the since the law is based on color, and nothing more, it passes the legitimate bounds of police power, and invades the civil right to acquire, enjoy and use property.
In Morgan v. Commonwealth of Virginia in 1946, the court ruled to prohibit racial segregation of interstate and intrastate transportation facilities based on the Interstate Commerce Act not the 14th amendment. In the 1955, Sarah Keys v. Carolina Coach Co., Interstate Commerce Commission (ICC) finally ruled that segregation was unconstitutional not just a statutory violation. In 1961 the ICC issued rules prohibiting racial discrimination in interstate buses. The court ruled in Boynton v. Commonwealth of Virginia in 1961 that the non-segregation order included the waiting rooms and restaurants. The failure to enforce these rulings led to the 1960s Freedom Rides.
In 1953, Eisenhower appointed Earl Warren, former governor of California, as Chief Justice of the U.S. Supreme Court. Fifteen years of rulings upholding individual rights followed – often called the only time in our Supreme Court’s history that the court actually ruled for the people. Eisenhower later said it was his biggest mistake.
The Twenty-fourth Amendment (1964) prohibited poll taxes and was applied to states in Harper v. Virginia State Board of Elections (1966). Yet southern states continued to be inventive in ways to disenfranchise Blacks. A law that prohibited whites and Blacks from marrying fell in 1967 in Loving v. Virginia. I find it amusing that the state slogan today is “Virginia is for loving.”
In 1954, the Supreme Court ruled unanimously in Brown v. Board of Education that racial segregation in public schools was unconstitutional stating that “separate educational facilities are inherently unequal.” Thus racial segregation laws were declared in violation of the Equal Protection Clause of the Fourteenth Amendment. This case and those that followed in favor of equality are considered by some the Second Reconstruction. Not until Brown v. Board of Educationin 1954 and the 1960s civil rights legislation did the Thirteenth, Fourteenth, and Fifteenth amendments start being enforced – 100 years after being passed.
In 1979 the Supreme Court ruled in Steelworkers v. Weber that Title VII was written for African Americans due to historical discrimination and was an acceptable plan even though some junior Black employees got to go to trainings before some senior white ones. The current Supreme Court has completely erased this ruling by claiming that it protects all “races” of which there is only one – human.
The current Supreme Court is once again undermining the Second Reconstruction.
Shortly after Warren left the court, it started backsliding. In Trafficante v. Metropolitan Life Insurance Co. (1972) the court allowed non-whites to sue claiming that they were discriminated against when the landlord prohibited Blacks because they lost the benefit of living in an integrated community. That sounds positive and surely the plaintiffs meant it so, but it quickly began to be turned against Blacks for whom the statues were passed by saying that white people could use the civil rights laws too.
In Milliken, Governor of Michigan, V. Bradley (1977) the court held that the 85 outlying districts near Detroit could not be included in the desegregation plan because there was no evidence they had discriminated. Land use discrimination and white flight had left Detroit majority Black – and that is all the court could consider, not the suburbs though that is where the whites fled. The court did not credit that the white flight was itself segregation and therefore said it was not necessary to consider the suburbs to integrate the now Black city.
Wygant v. Jackson Board of Education followed in 1986 where the court held that whites “harmed” by affirmative action could reverse the progress of Blacks and insist that white privilege be reinstated. The court held that actual discrimination alone is not enough for Blacks to win. They must prove that the particular government unit discriminated, and the action is necessary remedial action.
In Adarand Constructors v. Pena, (1995) the rule requiring general contractors to give preference to minority subcontractors was overturned based on the 5th amendment equal protection clause. The court held that all racial classifications must be viewed with strict scrutiny – not just Blacks being discriminated against but whites trying to reinstate white privilege too. Blacks must show discrimination by this particular agency, but whites just have to show they are white and disadvantaged by a rule favoring Blacks. So the burden of proof is not the same. The court claimed the 14th amendment protects persons not groups. But what groups was it passed to protect? Not whites for certain.
The current Supreme Court claims it’s theory of analysis is “historical” but if that were true, they would not allow whites to file under the 14th at all. In a dissent, Scalia even said that it is not a compelling interest for a state to remedy past discrimination because we are all one race. That is true enough but is not reality in society. Thus the groundwork was laid for the coming cases.
It didn’t take long. In Parents Involved in Community Schools v. Seattle School District (2007) when Seattle tried to voluntarily fix discrimination, the court told them they could not. The interest in racially diverse schools was not sufficient to deny whites their wishes of having an all-white school. The court claimed that while remedying past discrimination was compelling, making a non-discriminatory school now was not. They are apparently following the blindness theory articulated by Chief Justice Roberts that the way to end race discrimination was to stop discriminating by race. That false equivalence meant eventual death to affirmative action.
Like Murray, Houston, and Marshall built the steps one by one to culminate in Brown v. Bd of Education, the white supremacists have built the steps one by one to culminate in SFFA v. Harvard (2023) prohibiting affirmative action. In SFFA v. Harvard, the Court completely turned the 14th Amendment on its head and said that the core principle of the 14thAmendment was not to protect Blacks but to end discrimination based on any “race.” Nothing could be further from the truth. We fought a Civil War to get the 13th, 14th and 15th amendments passed. They were specifically passed for the benefit of the enslaved “race.” Whites didn’t need an amendment to prohibit them from being enslaved, to allow them to vote, or to demand equal protection. The formerly enslaved did. But now the court has completely reversed that to say that whites are protected to continue white supremacy.
Was the First Reconstruction a success or a failure?
Some argue that reconstruction was a massive logistical, political, and policy failure. It was a constitutional and economic challenge like the country had never faced. But the U.S. did not suppress the insurgency after the war that sought to continue white supremacy. During a brief period in the Reconstruction era, African Americans voted in large numbers and held public office at almost every level, including in both houses of Congress. However, this provoked a violent backlash from whites who did not want to relinquish supremacy.
The establishment of “Black Codes” in Southern states in 1865-6 would last until the Civil Rights Movement 100 years later. Jim Crow laws established throughout the period would lead to segregation by race and discrimination in all aspects of Southern life. The failure of the South to follow the 13, 14 and15th amendments resulted in the Great Migration of Blacks north. The more African Americans achieved the more they were physically threatened because their very success proved the failure of white supremacy.
Courts and juries said that the right to discriminate was an individual right so the state was not responsible and could not control individuals. But when Blacks tried to stop discrimination e.g. to vote, the court ruled that it was not an individual right but a state right which Blacks could not control. Damned if you do; damned if you don’t.
Some argue that reconstruction was a success because of the power of the 14th and 15th Amendments that helped African Americans to attain full civil rights in the 20th century. Despite the loss of ground that followed Reconstruction, African Americans succeeded in carving out a measure of independence within Southern society.
Conclusion
The Constitution is rife with slavery. Not only were slaves counted as 3/5ths a person and the fugitive slave law enshrined in the Constitution, but the Second Amendment was passed to allow Southern militias to track down escaped slaves. Guns were kept from Blacks by convicting them of crimes, often fictitious, and passing laws that felons can’t have guns. But white men are privileged to have their guns (New York State Rifle & Pistol Association, Inc. v. Bruen) even when it means they are likely to use them to kill women. The U.S. v. Rahimi case now awaiting decision will be instructive.
Racism and discrimination were enforced in the past by the KKK, racist police, redlining, poll taxes, “Black Codes” and a variety of laws. Today racism and discrimination are enforced by white supremacists militias, racist police, and predatory financial institutions. The rules for the community reinvestment act were finally updated after 25 years (JUST ACTION: How to Challenge Segregation Enacted Under Color of Law, Richard Rothstein and Leah Rothstein, 2023).
We are not where we were in 1865. Many people believe we are in the throes of a Third Reconstruction. Twenty million Americans protested after George Floyd was murdered. Black Lives Matter signs proliferate on suburban lawns. Qualified immunity for police has become a national issue. However, Truth Out revealed on Oct 23, 2023 that the numbers of Black and Brown people murdered by the police may be more than double what is reported. The lynching continues.
The Supreme Court is one of three legs in the constitution and the furthest from the people. Its only power is that people believe it. However, when the court is so far out of line with the people, they make rulings that are worth of no respect. After Dred Scott, President Lincoln and others ignored the Supreme Court decision. They went ahead and abolished slavery in the territories and let free Blacks vote in both north and south. The current Supreme Court with its overturning of precedent, rampant corruption, fake history, and senseless rulings must likewise be ignored and the march toward “equality for all” be intensified.