American Legal History II
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14thAmendment-Background-Challenges.pptx14th Amendment - Background/Challenges
14th Amendment - Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
Did the Reconstruction Era (From 1865 to 1883) help or hinder the ability of the 14th Amendment to bring about racial equality?
Does the government have the responsibility to protect individual liberty?
What level of government is best suited to protect individual liberty?
Can the federal court system protect against injustices committed at the state level?
Barron v. Baltimore (1833) - Context
Public works projects in Baltimore
Barron’s Wharf
Barron sued city
5th Amendment → Eminent Domain
Major Question → Does the Fifth Amendment deny the states as well as the national government the right to take private property for public use without justly compensating the property's owner?
Unanimous Decision
Implications:
State Cts → Enforce, no federal remedy
Dissent over federal usurpation → Nullification
Abolition, judicial emancipation?
14th Amendment → Context
Reconstruction
The War:
750k dead
⅕ of the South’s adult male population died fighting.
Post-War Opportunity & Conflict:
13th Amendment
Northern Expectations
Southern Expectations
Andrew Johnson
Civil Rights Act of 1866 & Reconstruction Act of 1867
Black Codes → Jim Crow
Redeemers
Birth of a Nation (1915)
The Black Codes
Civil Rights Provisions –
Section 5. Every freedman, free negro and mulatto shall, on the second Monday of January, one thousand eight hundred and sixty-six, and annually thereafter, have a lawful home or employment, and shall have written evidence thereof as follows, to wit: if living in any incorporated city, town, or village, a license from that mayor thereof; and if living outside of an incorporated city, town, or village, from the member of the board of police of his beat, authorizing him or her to do irregular and job work; or a written contract, as provided in Section 6 in this act; which license may be revoked for cause at any time by the authority granting the same.
Section 6. All contracts for labor made with freedmen, free negroes and mulattoes for a longer period than one month shall be in writing, and a duplicate, attested and read to said freedman, free negro or mulatto by a beat, city or county officer, or two disinterested white persons of the county in which the labor is to performed, of which each party shall have one: and said contracts shall be taken and held as entire contracts, and if the laborer shall quit the service of the employer before the expiration of his term of service, without good cause, he shall forfeit his wages for that year up to the time of quitting.
The Black Codes
Apprentice Law –
Section 4. Be it further enacted, that if any apprentice shall leave the employment of his or her master or mistress without his or her consent, said master or mistress may pursue and recapture said apprentice and bring him or her before any justice of the peace of the county, whose duty it shall be to remand said apprentice to the service of his or her master or mistress; and in the event of a refusal on the part of said apprentice so to return, then said justice shall commit said apprentice to the jail of said county, on failure to give bond, until the next term of the county court; and it shall be the duty of said court, at the first term thereafter, to investigate said case; and if the court shall be of opinion that said apprentice left the employment of his or her master or mistress without good cause, to order him or her to be punished, as provided for the punishment of hired freedmen, as may be from time to time provided for by law, for desertion, until he or she shall agree to return to his or her master or mistress:
Vagrancy –
Section 2. Be it further enacted, that all freedmen, free Negroes, and mulattoes in this state over the age of eighteen years found on the second Monday in January 1866, or thereafter, with no lawful employment or business, or found unlawfully assembling themselves together either in the day or nighttime, and all white persons so assembling with freedmen, free Negroes, or mulattoes, or usually associating with freedmen, free Negroes, or mulattoes on terms of equality, or living in adultery or fornication with a freedwoman, free Negro, or mulatto, shall be deemed vagrants; and, on conviction thereof, shall be fined in the sum of not exceeding, in the case of a freedman, free Negro, or mulatto, 150, and a white man, $200, and imprisoned at the discretion of the court, the free Negro not exceeding ten days, and the white man not exceeding six months.
Timeline → Reconstruction and the Protection of Black Rights
12/6/1865 → 13th Amendment Ratified
4/9/1866 → Civil Rights Act of 1866
5/1866 → 14th Amendment proposed in the House of Representatives
6/13/1866 → 14th Amendment sent to states for ratification
7/5/1866 → Johnson signs a proclamation pardoning former Confederates
3/23/1867→ Reconstruction Act of 1867
2/24 - 5/26/1868 → Impeachment trial of Andrew Johnson
7/9/1868 → 14th Amendment Ratified
12/25/1868 → Johnson signs a proclamation pardoning all other former Confederates who did not qualify
2/26/1869 → 15th Amendment Proposed
2/3/1870 → 15th Amendment Ratified
David Blight - “Race and Reunion” Excerpt
“In the end this is a story of how the forces of reconciliation overwhelmed the emancipationist vision in the national culture, how the inexorable drive for reunion both used and trumped race.”
“The sectional reunion after so horrible a civil war was a political triumph by the late nineteenth century, but it could not have been achieved without the re-subjugation of many of those people whom the war had freed from centuries of bondage. This is a tragedy lingering on the margins and infesting the heart of American history . . .”
Hurdles to Protecting Black Rights During Reconstruction
Regional Politics
Separation of Powers
1619 - 1863/5
Reconciliation, the Panic of 1873, and Public Opinion
Local Violence
Dual Federalism (layer-cake)
Supreme Court Reticence
From who? Individuals? The States?
14th Amendment → Underpinnings
Madison & Constitutional Convention
State injustice?
Congress and Legislative Veto → Concerns
John Bingham
Article IV inspiration
Constitutional foundation to destroy black codes
Where is “primary authority over the states and rights of individuals” located?
Does not broadly authorize congressional custody over fundamental rights.
Barron v. Baltimore (1833) . . . ?
14th Amendment - Section 1
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
14th Amendment - Section 5
The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.
No State Shall . . .
Privileges or Immunities - Background
“Privileges AND Immunities . . .” (Article IV, Section 2 - The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.)
The federal rights of citizenship.
Citizenship within the federal system:
State
Federal
Privileges or Immunities differ in each
14th protects federal, ambiguous on state
Privileges or Immunities → of citizens
Privilege - Over and above normal
Immunities - Freedom from burden
Barron v. Baltimore (1833) → Goal to incorporate
Mostly Southern Concern
Why do governments exist? - DOI
Privileges or Immunities - Background
What are they?
Natural rights → Predate government.
Right of access to the seat of government and to the seaports, sub-treasuries, land officers, and courts of justice in the several states, the right to demand protection of the Federal Government on the high seas or abroad, the right of assembly, the privilege of habeas corpus, the right to use the navigable waters of the United States, and rights secured by treaty?
Right to pass freely from state to state, the right to petition Congress for a redress of grievances, the right to vote for national officers, the right to enter public lands, the right to be protected against violence while in the lawful custody of a United States marshal, and the right to inform the United States authorities of violation of its laws?
Carrying on of interstate commerce?
Ongoing debate and discrepancy among scholars.
Equal Protection - Background
From “created equal” to “equal protection”
Laws that made distinctions based on race or color?
Goal → Destroy the black codes
Congressional versus Constitutional non-discrimination.
Some acceptance of separate but equal at adoption.
What type of equality → Civil or Social? Political?
Law vs. Personal Taste
Integrated Transportation? → RR Co. v. Brown (1873)
Education?
Leveling
Leap of Black Education
The Slaughterhouse Cases (1873) - Context
Reconstruction Waning & Southern Opposition
Booming NOLA population
Crescent City Butchers, Upstream, cholera
Downriver, State-Chartered “Crescent City Live-Stock Landing and Slaughterhouse Company,” Exclusivity.
Suit by Butchers Benevolent Association → Monopoly
“The amount of filth thrown into the river above the source from which the city is supplied with water, and coming from the slaughterhouses, is incredible. Barrels filled with entrails, livers, blood, urine, dung, and other refuse portions in an advanced stage of decomposition, are being constantly thrown into the River, but a short distance from the banks, poisoning the air with offensive smells and necessarily contaminating the water near the banks for miles.”
The Slaughterhouse Cases (1873) - Issues and Decision
Did the monopoly violate privileges or immunities of the 14th Amendment?
Justices align with opponents of post-Civil War realignment.
14th Amendment and state versus federal citizenship.
Revival of Dred Scott
Reconstruction Amendments should deal with slavery and aftermath
Avoid federal censor.
5 - 4 Decision
Excerpts
Eradicating the KKK
Enforcement Act of 1870/Civil Rights Act of 1870/First Ku Klux Klan Act/Force Act
John Bingham
3 Total Bills
Criminal codes which protected African-Americans’ right to vote, to hold office, to serve on juries, and receive equal protection of laws.
Laws also allowed the federal government to intervene when states did not act to protect these rights.
South Carolina Trials
U.S. v. Cruikshank (1875) - Context
KKK, White League, Rifle Clubs, Paramilitary Groups
Black Advancement
Colfax Massacre
9 of 97
Enforcement Acts (1870-1871)
2 or more; conspiracy to deprive
Post-Case:
1877 Withdrawal
U.S. v. Cruikshank (1875) - Issues and Decision
Violators Charged:
Violating freedmen’s 1st & 2nd Amendment Rights
How is the 14th Amendment to be applied?
“No state shall . . .”
Were Congress’ Enforcement Acts a constitutional way to ensure that the freedmen were not being deprived of their Fourteenth Amendment rights?
5 - 4 Decision:
Excerpts
Civil Rights Cases (1883) - Context
Ongoing discrimination:
Individuals
Public and Private Institutions
Jim Crow
Disenfranchisement
Lynching
National Stereotypes
Cruikshank and Violence
Civil Rights Act of 1875
“Force Act”
Federal gov’t empowered to address discrimination and exclusion.
Civil Rights Cases (1883) - Issues and Decision
5 Separate Cases → En Bloc
Transportation, Hotels, Inns, Taverns, Theatre
Private businesses → Public functions
Does the Civil Rights Act of 1875 violate the 10th Amendment?
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
8 -1 Decision:
Excerpts
U.S. v. Harris (1883) - Context
KKK, White League, Rifle Clubs, Paramilitary Groups
Civil Rights Act of 1875
Force Acts - 1870s
Attempt by lynch mob - Tennessee
Harris, et al. prosecuted federally under Force Acts
U.S. v. Harris (1883) - Issues and Decision
Can the federal government penalize crimes such as assault and murder?
Were the Force Acts constitutional?
Unanimous Decision by the Court:
State vs. Individual Action
