While Black citizens fought for their civil and human rights in the Reconstruction era, state and federal governments alike passed law and policy pertaining to them. Courts ruled. Legislatures made law. These are the legal shifts that both supported the Black freedom struggle and actively worked against it. Our guides to the last part of our Reconstruction series are Gilbert Paul Carrasco, Kate Masur and Kidada Williams.
This two-part Civics 101 series was made possible in part by a contribution in memory of Martin Leslie Schneider.
Transcript
Sponsor: [00:00:00] This episode of Civics 101 was made possible in part by a contribution in memory of Martin Leslie Schneider.
Hannah McCarthy: [00:00:08] I'm Hannah McCarthy.
Nick Capodice: [00:00:09] I'm Nick Capodice.
Hannah McCarthy: [00:00:11] And this is Civics 101. You're listening to episode three and a three part series on reconstruction. This is a series we have had to approach a little bit differently than your average Civics 101 project because the one on one of reconstruction [00:00:30] is. Well, there is no 101.
Nick Capodice: [00:00:35] As in this is not a simple story.
Hannah McCarthy: [00:00:38] It is not a simple story, but it is a story with clear prevailing facts. And if you do want a baseline understanding of what went on during reconstruction in the United States, we cover that in episode two. And if you want to know why, you probably don't know that story. We cover that in episode one.
Nick Capodice: [00:00:59] But this episode [00:01:00] is going to be a little closer to a 101, right?
Hannah McCarthy: [00:01:03] It is because there are the complex social and political machinations of reconstruction, and then there are the laws, policies and legal decisions that both supported it and worked to tear it down.
Nick Capodice: [00:01:17] So today is Recon Law 101.
Hannah McCarthy: [00:01:20] And in fact, we should just say laws and decisions about slavery and freedom, because it all started before the Civil War. And to that end, [00:01:30] let's bring in an expert.
Gilbert Paul Carrasco: [00:01:32] Okay. My name is Gilbert Paul Carrasco, and I'm a professor of law emeritus at Willamette University College of Law in Salem, Oregon. And I'm now practicing law doing primarily constitutional litigation.
Hannah McCarthy: [00:01:47] Gilbert has worked for the Equal Justice Foundation. He's been a lawyer in the Justice Department. He has litigated civil rights cases across the United States. He was the national director of immigration services for the US Catholic [00:02:00] Conference. He's been teaching law for nearly 30 years, and he has most recently gotten into litigating constitutional law cases pertaining to civil rights. So he knows the Constitution.
Gilbert Paul Carrasco: [00:02:13] I've been very fortunate to have the opportunity to make a difference in people's lives.
Hannah McCarthy: [00:02:21] So if we're going to talk about laws and rights and reconstruction, first, we have to establish why our nation nearly tore itself apart [00:02:30] and what the infection was at the heart of that.
Gilbert Paul Carrasco: [00:02:37] There was a very large business in the enslavement of Africans in the United States. And so this had been the case since the inception of our Constitution. And in fact, in Article four of the Constitution, there is a specific provision that says that enslavement should not be discontinued [00:03:00] by any state until at least 1808. And that really persisted until the very first day after 1808, where the effective date of the prohibition of importation of enslaved persons began.
Hannah McCarthy: [00:03:21] Now, this date, 1808, that is when the trans-Atlantic slave trade was prohibited in the United [00:03:30] States.
Nick Capodice: [00:03:30] So basically you could no longer import people. But that doesn't mean at all that slavery itself was prohibited. Correct.
Hannah McCarthy: [00:03:38] And this is an important bit of mental gymnastics here in the late 18th century. This idea that the seizing and importing of people from Africa was a crime against humanity. It was growing in popularity both in Europe and America, but the ownership [00:04:00] of people and the continued domestic slave trade in the United States that was still acceptable.
Nick Capodice: [00:04:08] And when we talk about kidnaping and importation of people, people who white Americans enslaved. I feel it's important, Hannah, that we point out the degree to which America relied upon and institutionalized racialized slavery. The melanin content of your skin determined your eligibility for enslavement. [00:04:30] That was the default that was the norm in the United States.
Hannah McCarthy: [00:04:34] It was this was a trademark of the, quote, new world, actually, that began when Queen Isabella of Spain told her colonizers that they could not enslave the existing populations of south, Central and North America, while colonizers still found ways around these laws to force indigenous peoples into labor. They also set up contracts to kidnap and import people from Africa. Other European [00:05:00] nations did the same, including Britain, which of course includes the British colonies of America. But there was still an issue, especially among British citizens. Traditionally, enslavement tended to be based on a person not being a Christian. Quote unquote heathens could be held in bondage.
Nick Capodice: [00:05:22] But that has a loophole. If they convert, they might be eligible for their freedom. Right.
Hannah McCarthy: [00:05:29] So what [00:05:30] are the other labor options? There are indentured servants in the colonies, people under contract to work for certain period of time, often white working class Europeans, but also Africans who entered willingly into this contract. There were people coerced into it as well. But either way, these indentured servants would eventually earn their, quote, freedom dues. They would be given autonomy, usually [00:06:00] some land and supplies. But ultimately this is a limited workforce. And eventually that workforce demanded better conditions and shorter contracts. Now, there are also many tribal nations in North America, and indeed, the colonists did enslave them. But these nations also had a support system. And if and when they fled, they were already home and home with powerful people who were actively resisting [00:06:30] that colonization and that enslavement. But people kidnaped from Africa, something so many nations were already involved in doing. For those individuals, home was thousands of miles away. So all that is left for the enslavers is the moral quandary. If Christianity makes these people free, you can no longer enslave them once they convert.
Nick Capodice: [00:06:57] So you take that factor away.
Hannah McCarthy: [00:06:59] You take it away. [00:07:00] Colonists who had always defined themselves as Christians or as English citizens, they started to move away from the definitions of Christian and not Christian. They began to define themselves as white. White means freedom. Not white. Not white begins to mean that not only can you be enslaved, you should be [00:07:30] enslaved. Unlike your religious affiliation, the color of your skin is ostensibly immutable. It cannot be changed. And this was the vile, convenient calculation. Moreover, this shift allowed white people to practice hereditary enslavement. If black means inherently enslavable, then the child of a black enslaved person is born enslaved. Colonial governing assemblies [00:08:00] met and agreed on this. This was not some secret unspoken principle. It was law. It was called Partus sequitur Ventrem and declared that, quote, All children born in this country shall be held, bonded or free only according to the condition of the mother. This means that black women's bodies would be treated as a means to perpetuate enslavement and that their children would be a product for the marketplace. This and [00:08:30] other inherently racist policies are inherent to our government. There's a reason that this is enshrined, albeit without ever using the word slavery in our Constitution. We've got the 3/5 compromise, the importation clause, the fugitive slave clause.
Nick Capodice: [00:08:48] Hannah I think we've pretty well established that the fight against slavery in the US was a long, drawn out, often deadly one. Did anyone ever challenge those constitutional [00:09:00] provisions, the ones that enshrined enslavement?
Gilbert Paul Carrasco: [00:09:06] The famous case of Prigg versus Pennsylvania tested the fugitive slave clause, and that involved an enslaved person who had escaped and gotten to a free state. And the question before the Supreme Court was whether he had to be returned by the person who was sheltering him in the free state, and the court ruled that he did. [00:09:30] And so he was returned to the person who was enslaving others in the south. So it was a long road to true freedom for the formerly enslaved.
Hannah McCarthy: [00:09:45] I want to dwell for a moment on this practice of suing for basic freedom. Black Americans, enslaved or not, brought essential simple questions before the court. Am I considered a person? Am [00:10:00] I considered free? Am I who have always lived in this nation considered a citizen?
Gilbert Paul Carrasco: [00:10:07] The denial of citizenship really dates back to 1856 and the Dred Scott decision. The Civil War was largely a result of the Supreme Court's suggestion that Africans who had been imported into the United States had no rights, that the white man was bound to respect. And that was [00:10:30] really a watershed case because it involved the question of whether Dred Scott, an African American, could assert the jurisdiction of the federal courts to raise the issue of his freedom. And the Supreme Court said that he could not because he had neither state nor national citizenship. And therefore, given the conferral of jurisdiction on the [00:11:00] federal courts, diversity jurisdiction, that is litigants on the plaintiff side and the defendant side from two different states, thereby conferring jurisdiction on the federal courts to entertain cases. He was deemed not to be capable of acquiring any kind of citizenship and therefore diversity jurisdiction didn't apply. So he was denied any rights that he might have asserted in federal court. That, of course, led [00:11:30] to the the violence that occurred in the Civil war and thereafter. So that was really the beginning of the violent intervention of the federal government. And that resulted in the death of just countless people on both sides over the rights really of the 4 million enslaved people who had been imported into the United States.
Nick Capodice: [00:11:57] Intervention of the federal government. [00:12:00] Okay. This is what we're getting to, right? I mean, obviously, the civil war represents intervention, but what about law?
Hannah McCarthy: [00:12:08] So I need to quickly mention that in the 1830, as anti-slavery sentiment continued to rise in the United States, Congress was receiving thousands of petitions from abolitionist citizens demanding an end to enslavement. In response, Congress implemented a gag rule in the House prohibiting discussion of anti-slavery petitions. [00:12:30] It lasted for eight years. Slavery was so essential to America that Congress literally did not want to talk about it. Meanwhile, in both slave states and states where enslavement was prohibited, there were laws oppressing, restricting and undermining black citizens. Reconstruction law was going to represent a seismic shift.
Kate Masur: [00:12:59] And it really [00:13:00] wasn't until there was a full scale rethinking of the relationship between the federal government and the states during Reconstruction, that that changed.
Hannah McCarthy: [00:13:12] I'm bringing in another expert here. You might remember her from the second episode in our series. This is Dr. Kate Mazur. She's a professor of history. She teaches race, politics and law at Northwestern, and she is the author of Until Justice Be Done, a book about America's first civil [00:13:30] rights movement, aka Reconstruction.
Kate Masur: [00:13:33] I think it's, you know, really important to kind of wrap our mind around it, not least because it gives us a sense of the real significance of those reconstruction amendments and the reconstruction of civil rights legislation, the statutes that were passed during that time. You can't really understand how important they were if you don't fully fathom like what the United States was like before that.
Nick Capodice: [00:13:52] When Kate says what it was like before that, does she mean, legally speaking? Yeah.
Hannah McCarthy: [00:13:57] State by state, you essentially had piecemeal [00:14:00] laws with no higher power to appeal to. So we think of the laws of the reconstruction era as pertaining to formerly enslaved people, but that is a limited view. We've been saying that reconstruction is not just about the South, not just about what was going on in the former Confederacy. Anti-blackness is a nationwide poison, and in free states there were laws that restricted movement and basic rights of, quote, [00:14:30] free black citizens. And it was in those free states that important sentiments about citizenship and political rights began to take hold.
Kate Masur: [00:14:40] Your fight was not at the federal level, Right. So what is the entity that's making these unjust laws mean? Right. Right now we're talking about it was the states. And so if you were an African-American person living in Ohio in the 1830 or 18 40s and you were faced with this set of state laws that like, let's just acknowledge, you know, [00:15:00] those residency laws were enforced inconsistently so you could move into a community where you weren't actually forced to register and things like that. From what we can understand, the testimony law, the law barring black testimony in cases involving whites was enforced more consistently. But, you know, the point is, what's the source of these laws and these unjust policies? It's your state government. So if you were to say to Congress, hey, Ohio is doing this, can you stop them? You know, Congress would likely be like, no, because they're [00:15:30] fully within their rights to do it. But so the goal was for black activists and their white allies to try to get these laws repealed at the state level. So you would be approaching the state legislature and saying, you know, we need to get rid of these laws. They're totally unfair. But one of the key questions is, how are you going to do that when, first of all, African Americans in these Midwestern states and across the free states were a small minority of the population, and then in many places, including in the Midwest, [00:16:00] black men were not allowed to vote.
Hannah McCarthy: [00:16:02] This position, by the way, does not mean that black Americans and their allies took no action.
Kate Masur: [00:16:09] One of the ways that people had a political voice, even if they didn't have the right to vote, was by petitioning one of the key strategies. And, you know, people might be familiar with the petitioning drives of the abolitionists and the gag rule and all that stuff. But so here's another example, right? In the states at the state level, African-Americans and the long groups of white people [00:16:30] who at the beginning favored repeal, these laws would petition the state government to sort of say, you know, these laws are unfair and they need to be repealed, and anyone could petition, right? So you didn't have to be a voter to petition. You didn't have to be a man. It could be a woman. There were many petitions for women as well as men, black people, as well as white people. And the petitions were effective in part because under the conventions that were operating in that time period, the legislature, especially if there were a bunch of petitions on the same [00:17:00] issue, they were kind of obligated to respond. That's why the gag rule in Congress was so controversial, was because Congress saying we're not going to respond.
Nick Capodice: [00:17:07] But were the states themselves compelled to respond to petitions like this?
Kate Masur: [00:17:11] They were supposed to respond. And so the Ohio legislature and other state legislatures would produce these records. For the most part, the reports would be negative. So you would have a report that would say, absolutely not. We're keeping these laws. They're really important to the safety and security of our state. Occasionally, there would be like a minority [00:17:30] report where one dissenter on the committee would say, here's my argument for why we should repeal these laws and why we should be listening to the black citizens of this state. But whatever the case, the activists were able to use the committee reports to advance their agenda. So we see newspapers publishing the reports with editorial comments. You know, if the legislature came back with like, we're keeping these laws, we're really worried about black migration. But. State and then an anti-slavery newspaper [00:18:00] or otherwise a newspaper that favored what repeal would publish the negative report and say, look at how horrible our state legislature is. Okay, so.
Nick Capodice: [00:18:09] There were newspapers publishing op eds about how awful their legislatures were in terms of how they treated black citizens.
Hannah McCarthy: [00:18:16] Right. And that helped to fuel political mobilization significantly. This mobilization, these newspapers, this spreading sentiment caught the attention of Republicans at the federal level. [00:18:30]
Kate Masur: [00:18:30] Part of the argument, in addition to kind of the ways that this movement was able to shape public opinion, particularly among white people, was also that some of the men who later become during the Civil War and Reconstruction, very powerful Republicans, began their political lives developing opinions about the injustice of anti-black policies in the free states. We see some of the same figures who are involved in this struggle when it's at the state level and before the Civil War. Then come into power [00:19:00] when the Republicans come into national power with the election of 1860. Now they're able to implement their vision in federal policy, whether it's with respect to some place like the District of Columbia, that's like a special place because it's directly under congressional jurisdiction or eventually, especially after the war is over, changing the shape of the federal system by passing these constitutional amendments that really in a brand new way, put the power of the federal government in the [00:19:30] service of individual rights.
Hannah McCarthy: [00:19:32] And we're going to talk about those individual rights after the break.
Nick Capodice: [00:19:35] But first, a quick reminder that there is so much that does not make it into our episodes. I mean, most of it doesn't make it in.
Hannah McCarthy: [00:19:42] That is true. Most of it. And so much trivia. We love trivia.
Nick Capodice: [00:19:48] Luckily, we have a receptacle in which we put all of that trivia and share with you our listeners. It's our newsletter. It's called Extra Credit. It comes out every other week and you're going to love it. Head on over to our website, civics101podcast.org [00:20:00] to subscribe. And while you're there, ask us a question. We are always looking for episode ideas from our listeners. The best topics come from You.
Hannah McCarthy: [00:20:10] And while you're at our website, consider making a donation to support our work. It means the world to us. You can also do that by clicking the link in our show notes.
Nick Capodice: [00:20:26] We're back. You're listening to Civics 101. This is the third [00:20:30] in a three part series on Reconstruction And Hannah. This time around, we're covering legal stuff. What legislators and courts were doing just before and during Reconstruction and how that law guided and did not guide what went on after the Civil War and after the abolition of slavery. And before the break, we were just about to get to the constitutional amendments that have the same name as the era. [00:21:00]
Hannah McCarthy: [00:21:00] That's right. The reconstruction amendments. So leading up to their passage, we've learned that there was activism and action in the United States that essentially laid the groundwork for the federal government to actually do something about the way that black people were treated in America enslaved, abused, oppressed, restricted and dehumanized between political activism and critical media coverage. The pressure was building and the [00:21:30] first federal step away from existing enslavement. It happened in 1863.
Gilbert Paul Carrasco: [00:21:36] The Emancipation Proclamation really had little legal effect, and we were still in the middle of the Civil War. So it was difficult for the rule of law to prevail in any meaningful way at that time, particularly in the South.
Nick Capodice: [00:21:53] And as we learned earlier in the series, the Emancipation Proclamation, an executive order that declared enslaved [00:22:00] people to be free. It did not apply to all enslaved people, only those in Confederate rebel states that were not yet occupied by union soldiers.
Hannah McCarthy: [00:22:10] And as Gilbert says, it didn't really carry the force of law. Ultimately, it was a good way for Abraham Lincoln to win support of abolitionists in America and abroad. And it did. And this proclamation, by the way, it did not change the legal status of an enslaved person. It did not affect the state [00:22:30] laws that enshrined enslavement.
Nick Capodice: [00:22:32] So how did we get to the laws that actually made some kind of difference when it came to the lives of enslaved people?
Gilbert Paul Carrasco: [00:22:39] The whole question of the prohibition of enslavement was broader than a lot of people realize. But in any case, the focal point really, the people who had been brought to the United States against their will from Africa and there were some very courageous people in Congress [00:23:00] at the time who stepped up and spoke out very forcefully. And that really made a tremendous difference in the adoption of all three reconstruction amendments. I think that the framers of the reconstruction amendments were well aware that it would take all three branches of the US government to eradicate enslavement in the United States.
Hannah McCarthy: [00:23:25] I want to pause here for a moment because, yes, there were people [00:23:30] in the United States Congress who stood behind the reconstruction amendments, but really the 14th Amendment, for example, never would have passed without black elected officials in the South who made certain their cause was given its due. We often think of abolitionist northerners and some Westerners as being the heroes of this legislation. Not only are they not the most important driving force, but northern and Western states do not represent a full throated support of [00:24:00] the reconstruction amendments. I'm going to bring in one more guest here. This is Dr. Kidada Williams. She's a professor of African American and US history at Wayne State University and author of I Saw Death Coming A Reconstruction History Told from the Lives and Perspectives of Formerly Enslaved Americans.
Kidada Williams: [00:24:23] Where did your state really stand on the reconstruction amendments? Because it might surprise you. And part of the reason that matters [00:24:30] is because the 13th Amendment barely passed. And that's even with the Southern states. That's even without the Confederates in the union. So it barely passes. And that tells us a lot about the North and the West. The 14th Amendment runs into similar problems.
Nick Capodice: [00:24:47] These amendments barely passed.
Hannah McCarthy: [00:24:49] The first House vote on the 13th Amendment had 65 nays and 23 abstentions. Nays came from all over the country, including the north and West, [00:25:00] including New Hampshire, New York, Pennsylvania, Illinois, Oregon, Connecticut and New Jersey.
Kidada Williams: [00:25:08] I think looking at reconstruction in the north and in the West matters a lot because it will make the world we live in or make our discussions about reconstruction make more sense.
Hannah McCarthy: [00:25:19] Kidada makes the point that there's a distinction between what amendments like the 13th meant to black Americans and what they meant to members of Congress. Even those members of Congress [00:25:30] who would eventually vote in support of reconstruction amendments at the.
Kidada Williams: [00:25:34] End of slavery with the 13th Amendment, you know, going through Congress, going through the states ratified. What you start to see with a lot with that sort of white majority outside the south is a sort of investment in emancipation being only that release from bondage.
Nick Capodice: [00:25:54] Only release from bondage as opposed to having actual rights, freedom, safety, [00:26:00] etcetera.
Hannah McCarthy: [00:26:01] Right. Often where the black community saw immense promise in federal legislation and fought to ensure it federal investment would be insufficient. For example, enforcing the reconstruction amendments, aka allowing black individuals to safely exercise their civil and human rights.
Kidada Williams: [00:26:19] And as long as the federal government makes clear that it's willing to send troops, is that in the face of resistance to reconstruction policies, that they are willing to, you know, pass [00:26:30] the enforcement acts, that they will do things like install a military governor in order to reconstruct the state and bring it back into the union. Enforcement looks like all of these kinds of things. So like you've got like this constellation of activities that the federal government for a time is participating in. It's not enough to completely ensure all or every single African-American enjoys all of their rights or that they face no resistance. But it does put a damper for at least a short period of time [00:27:00] on denials of freedom.
Hannah McCarthy: [00:27:02] And as we move into the substance of the reconstruction amendments, I want to keep exactly this in mind. A damper for a short period of time on denials of freedom, because by the end of this project, that damper insufficient in and of itself is going to go away.
Kidada Williams: [00:27:25] So this is to the question about reconstruction ending. You don't get federal enforcement [00:27:30] or there isn't support for federal enforcement of the reconstruction amendments from not only elected officials, but their constituents in the north and west. Many of the northerners and Westerners, white northerners and Westerners simply want to move on. They want to deal with westward expansion. They want to focus on U.S Empire. They want to focus on the railroads. They want to focus on anything other than reconstruction.
Hannah McCarthy: [00:27:55] We're going to get to that. But I want to reiterate, there was a white Congress [00:28:00] and then there were the black activists for whom we can primarily thank the successes of reconstruction.
Nick Capodice: [00:28:06] And Hannah, I know that for the first few decades of the constitutional Congress, more than half of the elected lawmakers were enslavers.
Hannah McCarthy: [00:28:14] Even after the Civil war began, when lawmakers from the seceded states left Congress, a full 10% of remaining congressmen were enslavers. So yes, there were abolitionists in Congress. We [00:28:30] would not have anti slavery legislation without them. But any notion that Congress, during and following the Civil War, was a fully abolitionist body would be to deny Like you call him Nick. Yeah. Because...How did yo the truth.
Nick Capodice: [00:28:42] But eventually the federal government did opt to pass constitutional amendments that finally outlawed the institution of keeping humans in bondage in the United States. So can we talk about the reconstruction amendments?
Hannah McCarthy: [00:28:58] Here's Gilbert again.
Gilbert Paul Carrasco: [00:28:59] The [00:29:00] 13th Amendment ending enslavement in 1865. The 14th Amendment in 1868 and the 15th Amendment conferring the right to vote in 1870. And so those developments were essential, really, to bring the entire weight of the federal government to bear on those who would desire to continue enslavement of Africans [00:29:30] in the South, particularly. So that was an essential component of the overall reconstruction.
Hannah McCarthy: [00:29:39] The 13th Amendment passed in Congress in 1865. This is after it had failed in the House of Representatives the year before. As I mentioned, it was ratified less than a month later. Nick, would you read it out loud? Yeah.
Nick Capodice: [00:29:53] Absolutely. Quote, Neither slavery nor involuntary servitude except as punishment for crime, [00:30:00] whereof the party shall have been duly convicted shall exist within the United States or any place subject to their jurisdiction. Yep.
Hannah McCarthy: [00:30:08] Abolition of slavery. Real abolition. Everybody is free. Ostensibly, that is followed by a quick and essential Section two. Congress shall have power to enforce this article by appropriate legislation. That means Congress can create laws to ensure that this amendment is actually practiced. [00:30:30] All right. The 14th.
Nick Capodice: [00:30:32] All right. This one's citizenship, right? This is it. Am I going to read it?
Hannah McCarthy: [00:30:36] This one is a little long for radio. The 14th says, in essence, that all persons born or naturalized in the US are citizens. It also has an enforcement clause and super, super importantly, has this section. Can you read it? Okay.
Nick Capodice: [00:30:52] No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States. [00:31:00] 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.
Hannah McCarthy: [00:31:11] Nick, do you know what this means?
Nick Capodice: [00:31:13] Kind of. I mean, I recognize life, liberty and property that's in the Fifth Amendment, and it's state specific. Bingo.
Hannah McCarthy: [00:31:20] The right to due process of law now extended to the states as well as the federal government. But [00:31:30] I got to say, again, ostensibly the Supreme Court is going to complicate this. This amendment was passed in 1866 and ratified two years later. We will come back to this. But it did not deliver on its promises. Okay. 15th Amendment. You can read this whole thing out loud. It's short.
Nick Capodice: [00:31:50] Okay. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, [00:32:00] color or previous condition of servitude. It also has an enforcement clause.
Hannah McCarthy: [00:32:05] Sure. Does this one means black men can vote. You can listen to episode two of this series to hear how that went. But these amendments are major because it is the federal government both conferring rights and saying that it has the power to enforce those rights.
Nick Capodice: [00:32:22] I think if I've learned anything from this series, Hannah, it's that the federal government did a truly disappointing job of upholding its end of the bargain. [00:32:30] Yeah.
Hannah McCarthy: [00:32:30] And again, that's going to be in part the fault of the Supreme Court. But let's take, for example, the elimination of enslavement. It comes with a caveat. Enslavement is permitted as punishment for a crime that a person has been convicted of.
Gilbert Paul Carrasco: [00:32:46] The early interpretation of the reconstruction amendments was quite varied. It wasn't nearly as protective of rights as the interpretation of those amendments is today. That's [00:33:00] because the the penal system at the time was really harsh. Someone could be sensed in a criminal proceeding to hard labor for a number of years, for example, and imprisonment is very close to enslavement. Freedom is deprived of the individual. There's a regimentation that demands immediate and complete obedience. There really are very few rights within the penal system [00:33:30] even today.
Hannah McCarthy: [00:33:31] There was something called convict leasing, a way to continue forced labor. Convicted criminals would be, quote, leased to corporations like railroads. And given the ways in which blackness was criminalized, this often meant black individuals in forced labor. And when it came to enslavers, it's not as though they suddenly got on board with freedom. Remember, this is a deeply entrenched practice, a practice that was justified by [00:34:00] the invented belief in the inferiority of black people. And many enslavers remained at heart and slavers.
Gilbert Paul Carrasco: [00:34:09] There were a variety of machinations that continued with regard to enslavement. I think the the policy of servitude of requiring people to continue to have their paychecks withheld until they paid back certain monies for [00:34:30] housing and even tools. In some cases, that was another form of enslavement, and that's really involuntary servitude, which is essentially the same. But that kind of practice is, in some cases, even still with us today. This is particularly applicable to temporary farm laborers, many of whom come from other countries, but it's a form of slavery or enslavement. [00:35:00] And I think that this is one of the practices that the farm owners in the South continued to employ even after the adoption of the 13th Amendment.
Hannah McCarthy: [00:35:16] We have already mentioned a bit the Supreme Court's role in undermining the rights of black Americans prior to the Civil War and Reconstruction. And as the arbiter of the Constitution, a power bestowed on the Supreme Court [00:35:30] by the Supreme Court. The reconstruction amendments were, of course, not immune to the justices interpretation.
Gilbert Paul Carrasco: [00:35:38] In 1873, in the Slaughter-house cases, the Supreme Court entertained the question of whether the privileges or immunities clause would be construed to apply the rights contained in the first ten amendments to the states.
Nick Capodice: [00:35:57] All right. Really quickly, slaughter-house cases, they're [00:36:00] quite.
Hannah McCarthy: [00:36:00] Literally about slaughterhouses. Specifically, there was a slaughterhouse monopoly in Louisiana. Butchers were told that they either had to shut down or pay to work on this single business's premises. And these butchers argued that this single slaughterhouse violated several provisions in the 13th and 14th Amendments, as well as their privileges and immunities in the Constitution itself. They said that this monopoly violated their privilege of operating a slaughterhouse and deprived them of earning [00:36:30] a living. Essentially, if they had to pay to work somewhere, they claimed that was involuntary servitude. This monopoly, they said, violated their new 13th and 14th Amendment rights.
Gilbert Paul Carrasco: [00:36:43] And the court determined that it did not.
Nick Capodice: [00:36:48] What does this slaughterhouse case have to do with black Americans or civil rights? Okay.
Hannah McCarthy: [00:36:53] On its face, potentially nothing unless we are talking about black butchers or black slaughterhouse [00:37:00] owners. But when you look deeper, the court is taking an extremely narrow reading of the 14th Amendment, saying that it only applied to black people and only banned states from depriving black people of rights and a super limited understanding of the Bill of Rights, which is that it only applied at the federal jurisdiction level.
Nick Capodice: [00:37:25] But isn't it a major point in the reconstruction amendments that the federal Government now [00:37:30] has a say on what went on in the States?
Hannah McCarthy: [00:37:32] So you can see the issue here.
Gilbert Paul Carrasco: [00:37:34] Even though there was a dissenting opinion, which was really actually the correct interpretation of the historical context, which maintained that this was the whole purpose of the adoption of the 14th Amendment to incorporate those rights that existed vis a vis the federal government as applied as against the states. And so that was [00:38:00] really a very unfortunate decision, and that's what led to the incorporation doctrine, which is a pretty complicated doctrine, but it adopted each right in the Bill of Rights, almost all of them right by right, case by case over the course of several decades, instead of employing the privileges or immunities clause, which would have done it in one fell swoop and would have applied [00:38:30] the Bill of Rights directly against the states all at once.
Hannah McCarthy: [00:38:37] There was an immense amount of promise in the 14th Amendment. The promise of federal protection. The promise of the Bill of Rights applying to everyone. But the court's opinion in 1873 essentially slowed the broad application of rights to a crawl.
Gilbert Paul Carrasco: [00:38:56] It was clearly within the contemplation of the framers [00:39:00] of the 14th Amendment to have the Bill of Rights apply to the States via the privileges or immunities clause, which is part of the 14th Amendment that was debated. It's clear from the debates that that was the intent of Congress, and the court just missed the boat in the Slaughter-house cases in 1873. They just misconstrued the intended meaning of the 14th Amendment. It took so long. There were cases involving [00:39:30] the Eighth Amendment, the cruel and unusual punishment clause. And essentially there were cases involving the double jeopardy clause, too. You can't try a person twice for the same crime. And those cases yielded the execution of inmates because the court decided that the Eighth Amendment and the Fifth Amendment double jeopardy clause did not apply to states, [00:40:00] whereas if those people had been prosecuted by the federal government, they would have had those protections because they were prosecuted by state governments. They did not.
Nick Capodice: [00:40:12] I assume a decision like this also weakens access to basic rights for black Americans.
Hannah McCarthy: [00:40:17] In an atmosphere of white people actively trying to limit those basic rights, regardless of what the federal government said was now the law.
Gilbert Paul Carrasco: [00:40:26] Well, there were a lot of different methodologies used by the southern [00:40:30] states to disenfranchize the newly freed enslaved people. And there were cases, for example, that interpreted state constitutional provisions that required people before they could register to vote to explain to the satisfaction of the registrar the meaning of arcane provisions in state constitutions. So in Mississippi, for example, there were these very elaborate provisions relating to taxation, [00:41:00] and they would be difficult even for lawyers to interpret. But those were examples of the provisions that the newly freed enslaved people were asked to interpret, and failing that, they were not given the right to register. And that just persisted for decades. Really. It persisted until the Voting Rights Act of 1965 was enacted. And even the [00:41:30] Civil Rights Acts of 1957 and 1960 that were intended to address disenfranchisement. They really were not effective in doing so. And it was not until the stronger provisions in 1965 were enacted that people really could go into court and insist on their right to vote. In some states, the formerly enslaved people actually had the majority, and this was always the fear of [00:42:00] the Southern landowners. They were always fearful of rebellion and being overcome by the enslaved workers on their farms. And as a result of reconstruction, there was a period where the federal government insisted on the franchise being extended to freed enslaved people, and that resulted in the election of [00:42:30] US senators and members of Congress.
Nick Capodice: [00:42:44] We know, though, Hannah, that this period of federal insistence was short lived. And I feel like this wild swing from sweeping federal legislation and enforcement to the Supreme Court saying, now, wait a moment. Those amendments are quite limited. [00:43:00] That must have laid the foundation for what became a very successful reign of white terror and black oppression.
Gilbert Paul Carrasco: [00:43:29] It's quite [00:43:30] remarkable, really to think about it, because after that ended with the withdrawal of the federal troops, that was really not to be even on the table again until really, in effect, the 1970s after the Voting Rights Act really became fully implemented. So it's really a remarkable period in our history that there was representation in both houses of Congress for [00:44:00] a brief period of time before the white legislatures took over again and enacted legislation that made that impossible.
Hannah McCarthy: [00:44:09] And we talked about this in an earlier episode. But I think it's important to reiterate a point that Kidada Williams makes, that one of the most insidious elements of the end of Reconstruction was the dwindling of white support for reconstruction in favor of a goal of white progress to the exclusion [00:44:30] of black progress, white power to the exclusion of black power, white forward motion to the exclusion of black forward motion. Here's Kidada again.
Kidada Williams: [00:44:42] There's a historian who says, Well, you know, there's there's this kind of era of hard feelings, you know, where white unionists are very upset about the war. And I would argue, yes, they are, but they are also invested in white supremacy, [00:45:00] and their investments in white supremacy will make it easier for them to kind of whistle past the violence that's happening in the South with the idea of focusing on reconciliation between the two unions. And so what you get is this fixation on a white peace, a peace between white brothers, irrespective of the black men, black brothers and sisters who are still being targeted in the south. And so this focus on reconciliation often drives a lot of [00:45:30] the, you know, policies toward reunification. You know, so you get things like the Amnesty Act, which takes the last of the guardrails off and allows many, many, many more ex-confederates to come back into government. Right. You know, once they regain authority in governance, they are absolutely steadfast in their commitment to dismantling all of the rights and privileges African-Americans had gained access to. Support for reconstruction. [00:46:00] You know, white support for reconstruction dwindles significantly. And then the Supreme Court does its thing in terms of restricting some of the policies of reconstruction, overturning the Civil Rights Act of 1875, which provided equal access to places of public accommodations. And so reconstruction is, you know, it's deliberately targeted with a lot of these policies and practices.
Nick Capodice: [00:46:27] And then, I mean, it's basically a hundred years [00:46:30] before the civil rights era of the 1960s. It is 100 years before the federal government finally does something again.
Hannah McCarthy: [00:46:38] And over the course of that time, the Supreme Court continued to undermine black rights despite the effort of black Americans. Here's Gilbert again.
Gilbert Paul Carrasco: [00:46:49] There were some important cases brought by African-Americans. Homer Adolph Plessy, for example, tried to assert his right to [00:47:00] occupy a white railway car. He was 7/8 Caucasian. Nevertheless, he was denied the right to occupy white railway car by the Supreme Court. And that led to the whole doctrine of separate but equal That persisted until 1954 with the Brown v Board of Education case. So there were attempts to assert rights under the reconstruction amendments in the early days, Plessy v [00:47:30] Ferguson was an 1896 case. But there were many other cases in that era where African-Americans tried to assert their rights.
Hannah McCarthy: [00:47:39] Gilbert basically says that the South was really strong. It got its way. Jim Crow descended and reigned, and that happened because of a lack of federal enforcement. That happened because lawmakers made a promise to uphold these laws, to crack down on violations, to [00:48:00] protect people. And they broke that promise. That happened because the Supreme Court ruled in ways that would today be called unconstitutional. That happened because the executive branch ordered the removal of federal enforcement and then looked the other way. Basically, if you look at the story of reconstruction, you're looking at the story of a country that after establishing and perpetuating an evil and. Odious basic principle of race based [00:48:30] human enslavement, wherein white people were on top in charge and could and should demean, dehumanize, chain and murder other human beings. Well, our country had a hard time giving that up. In every layer of our federal government found a means to let white America down easy.
Nick Capodice: [00:49:04] So, [00:49:00] Hannah, I know this is the last episode of the series. Is this the end?
Hannah McCarthy: [00:49:10] Yeah, this is the end.
Nick Capodice: [00:49:12] You've just described, and I suppose of the series, have continuously described facts that are truly and I've used this word a few times galling. And then of course, so much of it is awesome in the truest sense of the word that in the face of violence, terror, subjugation [00:49:30] and abandonment, black Americans fought and they kept fighting. You said from the beginning that the story of reconstruction is the story of a black freedom struggle. And I guess it's also the story of a really disappointing government and society.
Hannah McCarthy: [00:49:48] Honestly, as I made this series, I realized the degree to which so much of what I read in textbooks throughout my grade school years is about the victory march. America [00:50:00] getting better all the time. I thought often of the Dr. Martin Luther King Jr. Quote quote, The arc of the moral universe is long, but it bends toward justice. I thought of this because I think it is sometimes true, but it isn't necessarily true for the reasons that many of us think it is. It isn't true because that is the default of the moral universe, [00:50:30] that that's how it is, that that's how humans, specifically Americans, are at their core. At our core, we white Americans have been terrifically disappointing in so many ways. We are a nation of enslavement. We are a nation of deeply entrenched and exactingly planned racism. The bend toward justice is because of people, often black Americans, [00:51:00] who had injustice forced upon them and fought and died to lift that injustice from their lives. And that fight has been helped by those who have used their self-appointed power, including some white Americans for Justice, and agreed that injustice is wrong. I said at the beginning of this series, this is a good story. And by that I mean it's a story we should know.
Hannah McCarthy: [00:51:27] It's a defining story. [00:51:30] It tells us a lot about who we are, where we've come from. We Americans love stories like this. But this is not the version of the story we predominantly tell, but it doesn't really matter. People are telling it anyway, and we all have the option to listen if we want to. That [00:52:00] does it for this episode and for episode three. In this three part series on Reconstruction, you can find the first two episodes of the series and every other episode we have ever [00:52:30] made at our website civics101podcast.org. This episode was made by me. Hannah McCarthy with Nick Capodice. Christina Phillips is our senior producer. Jacqui Fulton is our producer and Rebecca Lavoie is our executive producer. Music in this episode by Cobby Costa, Anthony Earls Ferrell Whooten, Alexander Woodward, Charles Holm, Augusta Williamson. Gerard Fang, Paeta, Saura, Commodity, Toby Tranter, Bonkers Beat Club, Matt Large, Friends [00:53:00] with Animals, Oh the City, Ballpoint, Dharma Beats, Martin Kelm, Cospi, Vicky Vox and Xylo Ziko. If you have a question for Civics 101, please go to the website civics101podcast.org. Again, click on the link on the home page and submit it. You are where we get our best episode ideas. Civics 101 is a production of NHPR, New Hampshire Public Radio.