Last Minute Essay Outline on Civil Rights Act of 1964

—Neither slavery nor involuntary servitude... shall exist within the United States

—13th Amendment, 1865

FREEDOM’S DREAM After the Civil War the 13th, 14th and 15th amendments to the Constitution promised African Americans a level playing field. The backlash against Reconstruction put those promises on hold for more than a century by Eric Foner

F o rm e r slaves p la n t s w e e t p o ta to e s on E d is to Island, S.C., A p r il 1862. M a n y blacks s ta y e d b e h in d a fte r p la n ta tio n s o n th e islan d w e re e v a c u a te d b y C o n fe d e ra te o rd e r th e p re v io u s N o v e m b e r.

—All persons born or naturalized in the United States...are citizens of the United States and the state wherein they reside. No state shalL.deprive any per­ son 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, 1868

Reconstruction, the turbulent period that followed the Civil War, is a crucial but often misunderstood era of American history. Traditionally portrayed by his­ torians as a sordid period when vindictive Radical Republicans fastened black su­ premacy upon the defeated Confederacy, Reconstruction has lately been viewed more sympathetically, as a laudable attempt to build democracy on the ashes of slavery. It was a time when the entire nation, but especially the South, sought to come to terms with the consequences of emancipation.

Reconstruction witnessed sweeping changes in American public life, among them three far- reaching constitutional amendments. The 13th Amendment, ratified in 1865, irrevocably abol­ ished slavery throughout the country (and in so doing, introduced the word "slavery” into the Constitution—the original document used cir­ cumlocutions such as "other persons” or indi­ viduals “held to service or labor”). The 14th, ratified in 1868, established the principles of birthright citizenship and equality before the law regardless of race. The 15th, ratified in 1870, prohibited states from barring Americans from voting because of race. These amendments did more than simply change the Constitution. They amounted to what some historians call a “sec­ ond founding,” a fundamental redefinition of the rights of all Americans and of relations between the federal government and the states. As one commentator wrote, they transformed a consti­ tution “for white m en” into one “for mankind.”

To understand how these "freedom am end­ m ents” sought to fundam entally reshape American society, one m ust recall the status of African Americans on the eve of the Civil War. Nearly 4 million were slaves, deprived of all personal and civic rights. Protections for slav­

ery were embedded in the Constitution. Slav­ ery was an economically thriving institution that had a stranglehold on the political system and warped the definition of American nation­ ality, giving it a powerful racial overtone.

Even though some half-million free blacks lived in the country in i860, no state, North or South, afforded them complete equality before the law. In the Dred Scott decision of 1857, the Supreme Court stated explicidy that no black people, slave or free, could be citizens of the United States, even if their ancestors had been here for generations. African Americans had "no rights which the white m an was bound to respect,” according to Chief Justice Roger B. Taney. An alternative point of view did exist, a concept of citizenship severed from race. It was advocated by the abolitionist movement, which insisted not only that the slaves should be emancipated but that they should be incor­ porated as equal members of society. Except for a few Northern enclaves, however, the abo­ litionists were a despised minority.

W hat put the question of black citizenship on the national agenda was the destruction of slavery during the Civil War, and, more specifi­ cally, the service of 180,000 black m en in the

4 4 A M E R I C A N H I S T O R Y

A Baltim ore parade to mark ratification o f the 15th A m e nd m e nt in 1870 is a t the center o f a p rin t th a t celebrates new freedom s fo r African Americans.

Union Army during the last two years of the conflict. Shortly before his death, Lincoln, who had not supported black suffrage before the war, declared that he favored giving the right to vote to those soldiers and to “very intelli-

| gent” blacks. Most Northern Republicans came 8 to believe that by fighting and dying for the £ Union, black men had staked a claim to citi- <

I zenship in the postwar world.

L incoln, of course, did not live to preside over Reconstruction. That task fell to his successor, Andrew Johnson, who lacked all Lincoln's qualities of greatness. Johnson was deeply racist, out of touch with Northern public opinion and incapable of deal­

ing with Congress. In the months after the war ended he established new governments in the South, controlled entirely by whites. They enacted a series of laws to circumscribe the freedom that African Americans had come to enjoy. Known as the Black Codes, these measures granted for­ mer slaves virtually no civil rights and made it a crime for black workers to refuse to sign coercive labor contracts.

To Republicans, the Black Codes seemed designed to use the power of the state to restore slavery in all but name, and Congress decided that Johnson’s policy needed to be changed. Claiming authorization under the 13th Amendment, it passed, over the president’s veto, the Civil Rights Act of 1866, one of the most important laws in our history—the origin of our modern legal concept of civil rights. It declared that a per­ son born in the United States is an American citizen (thus invalidating Dred Scott), and spelled out rights to be enjoyed by all citizens, regard­ less of race. Essentially, these were the rights that would enable blacks to compete in the marketplace as free laborers—to own property, testify

D E C E M B E R 2 0 1 5 4 5

B lack ca ricatures fille d c a rto o n d e p ic tio n s o f th e R e co n stru ctio n -e ra South. H ere, "M assa W h ite " is fo rc e d to w o rk his la n d w h ile his fo rm e r slaves m o v e on.

Picturing RECONSTRUCTION

A ru m o r t h a t b la c k U.S. s o ld ie rs h a d k ille d w h ite p o lic e m e n in M e m p h is in 1866 to u c h e d o f f tw o days o f r io tin g th a t le ft 46 b la cks a n d tw o w h ite s d ea d .

4 6 A M E R I C A N H I S T O R Y

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Thomas Nast skewers the Democratic Party in 1868, depicting loutish Irishmen, former Confederates and corrupt moneymen who conspire against black rights.

D E C E M B E R 2 0 1 5 47

—The right of citizens of the United States to vote shall not be denied or abridged...on account of race, color, or previous condition of servitude

—15th Amendment, 1870

ing about race—it applies to all Americans. It made the Constitution what it has become in our own time, a vehicle through which ag­ grieved groups, extending well beyond the de­ scendants of slaves, who believe that they have been denied equality or liberty can take their claims to court. (For example, this past June, the Supreme Court relied on the 14th Amend­ ment's guarantee of equal liberty that cannot be abridged by the states to affirm that gay Ameri­ cans have a constitutional right to marry.) The 14th Amendment did not grant black men the right to vote; that would be accomplished with the 15th Amendment, ratified in 1870.

In a Senate speech about the enforcement of the 15th Amendment, Republican leader Carl Schurz noted that the “constitutional revolu­ tion" of Reconstruction marked a significant change not only in the definition of citizenship but in the federal system. Each of the three amendments empowered Congress to enforce its provisions, a radical change in relations be­ tween the states and the federal government. The Bill of Rights, the first 10 amendments to the Constitution that guarantee our basic civil liberties, begins with the words “Congress shall make no law.” It prohibits the federal govern­ ment, but not the states, from abridging basic rights such as freedom of speech, the press and religion and the right to a speedy trial. Its lan­ guage reflects the view, widespread in the rev­ olutionary era, that the main danger to liberty lies in a too-powerful federal government.

The Civil War and the destruction of slavery, however, crystalized in the minds of Northerners the idea that the states, not the federal government, needed to be restrained from violating citizens’ rights. The 13th, 14th and 15th amendments made the national gov­ ernment for the first time in our history what Charles Sumner, the abolitionist senator from Massachusetts, called “the custodian of free­ dom.” During Reconstruction, Congress used this authority to try to protect blacks from vio-

in court, sue and be sued and be protected against invidious discrimina­ tion by public authorities and under state laws, like the Black Codes, and local "customs.” The law said nothing about the right to vote, then still a highly controversial issue. (At the time only five Northern states allowed black men to vote on the same basis as whites.)

Of course, a law can be repealed, so the Republican majority put these principles into the Constitution with the 14th Amendment, the most important single change to that document since the Bill of Rights. The amendment guaranteed birthright citizenship and equality before the law, and it prohibited the states from depriving any person of “liber­ ty.” The language is vague, intentionally so. Unlike the Civil Rights Act, the amendment does not list specific rights. It is a statement of general principle, leaving it to Congress and the courts to work out the meaning of equality and liberty.

The idea that all Americans should enjoy the same legal rights is so ingrained today that we may fail to realize what a radical departure it was when Congress approved the 14th Amendment in 1866. The word "equal” is not in the original Constitution (except regarding states hav­ ing the same number of senators). The 14th Amendment says noth-

Josiah Thom as Walls, a fo rm e r slave a n d U nion A rm y veteran, was e le c te d to C ongress fro m F lorida in 1870. He was th e last A fric a n A m e ric a n to re p re s e n t F lorida u n til 1992.

The Military ' ; ! j j :! Reconstruction A q | j | f o f 1867 enabled j j f j black men in the South to vote for the first time. As former Confederates regained political power, black

y | voting rights were | | j | taken away.

D E C E M B E R 2 0 1 5 49

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i'on s/o to i/nmierf c/oyoir t h i n k / / / tet an /nferna/ Ar/yy/ r take A f t , h v the k u n e / S _ n o s m - / r e t/ras /a a white, tnee/ks g o v e r n m e n t .

R E C O N S T R U C T I O N , O R “A U ' H I T K MAX’S GO VK H X .M K X T ".

A p e rio d cartoon mocks the recalcitrance o f Southern whites.

lence in t i e South and to overturn discrimina­ tory state laws and local practices. In the 20th and 21st centuries, the Supreme Court has gradually used the 14th A m endm ent to “incor­ porate” the Bill of Rights—that is, to require the states as well as the federal government to abide by provisions of the first 10 amendments. As a result, w hen aggrieved groups seek legal protection for their rights against violations by local authorities, they can appeal to the federal courts. This would be impossible without the Reconstruction amendments.

Even before the ratification of the 15th Amendment, Congress in 1867 extended the right to vote to black m en in the South, inau­ gurating the period of Radical Reconstruction. New governments, dominated by the Republi­ can Party, came to power throughout the South, with black men for the first time in American history voting in large numbers and holding public office. These governments created the

South's first statewide systems of public education, sought to rebuild the shattered economy, enacted civil rights legislation and tried to protect the rights of black laborers on plantations. Black men served at every level of government, from 16 members of Congress (including two senators) to state legislators, sheriffs, school board officials and justices of the peace. Most power remained in the hands of white Republicans, but the fact that some 2,000 African-American men held elected positions of political power during Reconstruction was a remarkable change in the American political system, the first example of interracial democracy in our history.

U nfortunately, despite the expansion of civil and political rights, these state governments failed to effectively address the economic plight of impoverished former slaves. Their quest for land—the famous 40 acres and a m ule—to provide

an economic foundation for their new freedom was not fulfilled. Still, it was not Reconstruction’s failures but its success in challenging the en ­ trenched tradition of white supremacy that inspired a wave of violent opposition. Homegrown terrorist groups like the Ku Klux Klan launched a campaign of violence that succeeded in undermining many of the new state governments. Meanwhile, as Southern propaganda against the Re­ construction governments found a nationwide audience, Northerners in the 1870s retreated from the ideal of equality, and after an initial ef­ fort to suppress violence, the national government stood aside. One by one, the Reconstruction governments fell. As a result of a bargain after the disputed presidential election of 1876, Republican Rutherford B. Hayes claimed the White House and disavowed further national efforts

5 0 A M E R I C A N H I S T O R Y

to enforce the rights of black citizens, while white Democrats controlled the South.

By the turn of the century a new system of white domination had been put in place in the South. Its pillars included racial segrega­ tion, the disenfranchisement of black voters, a severe cutback in public funding for black education, a rigidly segmented labor market in which most good jobs were reserved for whites and, at the system’s outer edge, extralegal vio­ lence. Between 1890 and 1950 more than 3,000 people were lynched in the Southern states, the vast majority African American.

Jim Crow, as this comprehensive structure of inequality was called, was a regional system. But the abrogation in the South of the Recon­ struction amendments could not have hap­ pened without the North’s acquiescence. The Supreme Court interpreted the amendments in such a way as to render them meaningless for black Americans. The court declared racial segregation compatible with the 14th Amend­ ment’s guarantee of equality before the law, and measures like poll taxes and rules requir­ ing prospective voters to demonstrate “un­ derstanding” of state constitutions allowable under the 15th, even though these essentially eliminated the black vote in the South. For de­ cades the court used the 14th Amendment not to protect the rights of American citizens but to shield corporations from regulation by the states. While violated with impunity, how­ ever, the three amendments remained on the books, “sleeping giants" in the Constitution, to use Charles Sumner’s phrase. In the mid-20th century, they would be awakened by another generation of Americans, who led the strug­ gle—often called the Second Reconstruction— that finally destroyed the Jim Crow system.

As the United States enters the 150th anni­ versary of Reconstruction, it is worth recalling this history, both as an inspiring example of the struggle for racial equality and as a warning that constitutional rights are not self-enforc­ ing. Even today, despite the enormous changes that have taken place in the last half-century, the legacy of 250 years of slavery and nearly a century of segregation continues to haunt American life. ★

Eric Foner is DeWitt Clinton Professor of History at Columbia University and the author of many works on American history, most recently Gateway to Freedom: The Hidden History of the Under­ ground Railroad (W.W. Norton).

RADICAL REPUBLICAN On January 22, 1861, Ohio congressman, lawyer and lifelong abolitionist John Bingham argued against the slave states' a ttem pt to amend the C onstitution to protect forever the practice o f owning humans: "W ith uplifted hand, I deny th a t any State o f this Union...can rightfully deprive any citizen of his guarantied [s/c] privileges. And I further deny, in the name o f the American people, th a t any State can rightfully let loose in our midst the demon o f discord, to breathe upon us from his shriveled lips famine, pestilence and death, to blast our fields, and defile our hearths and altars w ith the blood o f fratricide."

A fte r the Civil War, Bingham served on the Joint Com m ittee on Reconstruction th a t documented the pervasive abuse o f Unionists and blacks in the South by unrepentant Rebels. He saw a need fo r a constitutional amendment to em power the federal governm ent to protect the basic rights o f citizens against abuses by state authorities.

"You must amend the Constitution. It cannot be otherwise," said Bingham in a February 28, 1866, speech. "Restore those States w ith a majority o f rebels to political power, and they will cast their ballots to exclude from the protection o f the laws every man who bore arms in defense o f the Government. The loyal m inority o f w hite citizens and the disfranchised colored citizens will be utterly powerless. There is no efficient remedy fo r it w ith o u t an amendment to your Constitution. A civil action is no remedy fo r a great public wrong and crime."

W ith Bingham's help the Reconstruction com m ittee drafted the 14th Amendment: "N o state shall make or enforce any law which shall abridge the privileges or immunities o f citizens o f the United States; nor shall any state deprive any person o f life, liberty, or property, w ithout due process o f law; nor deny to any person within its jurisdiction the equal protection o f the laws." Bingham borrowed the concepts o f due process and equal protection o f the laws from the Magna Carta, and by substituting "person" fo r "m an," he gave the proposed amendment power to redress far more than just racial discrimination.

Despite opposition from President Andrew Johnson, th e amendment passed Congress and was sent to the states on June 13, 1866; it was ratified July 9, 1868.

— Sarah Richardson

In a ddition to his w ork on the 14th Am endm ent, John Bingham was a special ju d g e advocate in the trial o f the Lincoln assassination conspirators.

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