V: Slavery, Civil War, and Reconstruction

Slavery and race presented the most serious problems to the American effort to maintain constitutional government. Slavery existed by law in every American colony, as it did throughout most of the world for most of human history. Nearly all of the founders recognized that slavery contradicted the principles of the Declaration of Independence. The institution was under attack by both enlightened rationalists and evangelicals. At the same time, powerful economic interests demanded its continuation. Moreover, slavery was not only an economic institution but a system of race relations. Few Anglo-Americans believed that blacks could live on a plane of equality with whites. Immediate emancipation would be calamitous for both races, most concluded. The well-known anguish of Thomas Jefferson during the revolutionary generation is representative of white American ambivalence on the issue.

The founding generation did act upon its anti-slavery beliefs. Every state north of Maryland abolished slavery, either gradually or immediately, by various means. This was perhaps the most important effect of the American Revolution—it turned slavery from a national into a sectional institution. Though the vast majority of slaves were in the South, perhaps ten percent of New York’s population was enslaved in 1776. Southern states made it easier for individual masters to liberate their slaves (manumission), and many did—manumission freed more slaves in the South than abolition did in the North. Blacks certainly enjoyed some of the rights of citizenship in the Confederation period. The last significant act of the Confederation Congress was to abolish slavery in the Northwest Territory.

Slavery was an important issue at the Constitutional Convention (see chapter 3), and it was a matter of debate in the antebellum years and among historians to this day as to how much the Constitution accommodated slavery. It is fair to say that, while the document clearly gave certain safeguards to slavery, these were exceptions to a general theme of liberty. But, in the changed circumstances after ratification, and with the national government usually under the control of pro-slavery political parties, the Constitution was turned against the design of its framers.

The change in American thinking about slavery and race reflected the general reaction against the Enlightenment after the French Revolution. The French experience showed the danger of taking the ideas of liberty and equality too far. This seemed especially so when the slaves of the French colony of St. Domingue (Haiti) rebelled against their owners and massacred them—exactly the race war that southerners feared. Gabriel Prosser’s slave rebellion in Virginia in 1800 reinforced such fears. In addition, the invention of the cotton gin in 1793 intensified the economic interest in slavery. A declining importance in the old tobacco country of the upper South, slavery was immensely profitable in the cotton lands of the new southwest. While the evangelical Protestantism of the second Great Awakening intensified religious anti-slavery sentiment, pro-slavery men began to devise new religious and racial arguments in favor of slavery. In the founding generation, southerners generally apologized for slavery, recognizing its wrongness but not knowing what practical steps to take about it, and northerners sympathized with their situation. By the 1830s, southerners constructed a defense of slavery as a “positive good,” and more northerners turned anti-slavery into a moral condemnation of the South, demanding immediate abolition regardless of the consequences.

The states regulated the legal status of citizens and slaves almost exclusively. State law varied, but in general the condition of slaves and free blacks deteriorated both North and South in the antebellum years. Slaves states made it more difficult to manumit slaves, and many states deprived blacks of the right to vote as they extended it to white males without property. (Free blacks could vote even in the slaves states of Tennessee and North Carolina until the 1830s.) Massachusetts repealed its law banning interracial marriage in 1843, but it permitted the city of Boston to segregate its public schools until 1855. New free states prohibited free blacks from moving in. Even where free blacks enjoyed civil rights on paper, popular opinion and mobs prevented their exercise. Abolitionists in the North were also subject to mob violence. They could not speak out against slavery in the South, where several states enacted sedition laws to punish anti-slavery speech and writing. No small number of whites opposed the spread of slavery into the West because they opposed the migration of blacks into the West.

The federal government largely avoided the issue of slavery and left it to the states, but where it could not ignore the issue it usually favored slave interests. Congress prohibited blacks from serving in the national militia or postal service. In 1790 it exercised its power “to establish an uniform rule of naturalization” and limited new citizenship to whites. The attorney general suggested in 1821 that blacks who were state citizens might be able to command vessels of the United States. But Attorney General Roger B. Taney declared in 1832 that, regardless of their status in free states, blacks could never be considered US citizens. In the 1830s, intense controversies arose in Congress about abolitionists’ rights to use the US mail and to petition Congress. Southern states effectively nullified the legal requirement that postmasters deliver mail to its addressee. While the House of Representatives eventually repealed an anti-abolitionist “gag rule,” the Senate maintained a custom against receiving anti-slavery petitions. In foreign affairs, the diplomatic corps worked to procure compensation for slave owners who lost slaves in the wars of Independence and 1812. The US outlawed the slave trade in 1808 and punished slave traders as pirates. Nevertheless, in several celebrated cases involving mutinies and escapes of enslaved Africans (most notably the Amistad), the federal government was more concerned about appeasing southern and European interests than in securing the natural freedom of captured Africans.

The most difficult areas for the national government to avoid the issue of slavery involved fugitive slaves and the territories. With its usual reticence regarding slavery, the Constitution declared that “No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service of labor may be due.” The most extreme anti-slavery men claimed that this “fugitive slave clause” did not apply to slaves at all, but only to indentured servants. But the framers wrote the provision in the passive voice, indicating neither who would enforce it nor the means to do so. Since they placed it in Article IV of the Constitution, the part dealing with inter-state or “comity” matters, perhaps it was entirely a state matter. In any case, Congress enacted a Fugitive Slave Act in 1793, providing for concurrent enforcement by federal and state officers.

By the 1820s, interstate comity began to break down. In order to protect their free black citizens from kidnapping, northern states enacted “personal liberty laws” to ensure that accused fugitives received due process of law. Southern states regarded these as attempts to obstruct the Fugitive Slave Act and renege on their duty to assist in the return of fugitives. At the same time, northerners believed that slave states had an obligation to respect the rights of free blacks, since Article IV of the Constitution also declared that “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” In 1823, South Carolina enacted a “Negro Seamen law” that required free black sailors to be imprisoned while their ships lay in port. Though a federal circuit court held the act unconstitutional, South Carolina ignored the ruling.

The Supreme Court entered the fugitive slave thicket in 1842, hearing the appeal of a Maryland slave-catcher convicted under Pennsylvania’s personal liberty law. The Court overturned the Pennsylvania law as state interference in the exercise of a valid federal power—the Fugitive Slave Act. But Justice Story ruled that, since federal power to enforce the fugitive slave clause was “exclusive,” states could not be compelled to assist in its enforcement. Southerners on the Court objected to this interpretation, and many northern states took it as an invitation to obstruct the Fugitive Slave Act by other means. This led southerners to demand a more stringent federal act. As for disputes among states regarding the status of individual blacks, the Supreme Court in 1850 decided that it would not review the judgments of the highest state courts. Thus it was left to northern states to decide how long they would allow slaveholders to keep (or “sojourn” with) their slaves in free states before they became free, and to southern states to decide how long they would let free blacks remain in slave states before they returned to slavery (“reattachment”).

Slavery in the territories was the principal issue that led to the Civil War. Congress prohibited slavery in the territories North of the Ohio River in the 1787 Northwest Ordinance. When the US purchased the Louisiana Territory in 1803, about half of the population were slaves and the purchase treaty guaranteed the property rights of their owners. Louisiana entered the union with slavery in 1812. By 1819, Missouri was ready to enter the union, but some northern congressmen attempted to require the state to make provision for the abolition of slavery as a condition of admission. This opened a heated argument over the power of Congress regarding slavery—what Jefferson called the “firebell in the night” that augured the end of the union. In the end, Missouri joined the union as a slave state and Maine entered as a free state, and slavery was prohibited North of the line 36º 30”—most of the remainder of the territory. A provision in Missouri’s constitution directing the legislature to enact laws to prevent the migration of free blacks compounded the crisis. Northerners insisted that the state promise that it would not thus violate the rights of black citizens of other states. The Missouri legislature answered that it had no power to enforce such a pledge, made the pledge anyway, and ignored it.

Texas reopened the issue. Mexico had abolished slavery in 1829, but American settlers brought their slaves in anyway. When Texas won its independence from Mexico in 1836 it sought annexation by the United States. The American government resisted until 1844, when the Democratic candidate for President, James K. Polk, endorsed it. President Tyler submitted an annexation treaty to the Senate, where it was defeated. After the election, Congress passed a joint resolution of annexation by a simple majority rather than the 2/3 treaty majority. The annexation led to war with Mexico, the whole process being regarded by many Whigs and northerners as a southern Democratic plot to extend slavery.

The US acquired another half million square miles of territory from Mexico, and the question of the status of slavery exploded again. During the war, antislavery congressmen supported a proposal by Pennsylvania Democrat David Wilmot, that slavery be prohibited in any territory won from Mexico. Though Congress never adopted it, the “Wilmot Proviso”—that Congress could and should keep slavery out of the territories—became the principal antislavery constitutional position. Others hoped that Congress would extend the Missouri Compromise line through the new territories, but opinion had become too polarized for this. The position of extreme pro-slavery men such as John C. Calhoun was that Congress had no power to prohibit slavery in the territories, but only a duty to protect slave property there. The newest idea, devised by Michigan Democrat Lewis Cass and championed by Illinois Democrat Stephen Douglas, was that Congress should allow the people of a territory to decide the question for themselves. This doctrine was known as “popular sovereignty.”

The deadlock continued into 1850, when Congress enacted a set of measures giving North and South some of what each wanted. The most important provisions of the “Compromise of 1850” admitted California as a free state, applied popular sovereignty to the remainder of the Mexican Cession, abolished the slave trade (but preserved slavery itself) in the District of Columbia, and provided a new, more stringent Fugitive Slave Act. Very few members of Congress voted for both anti- and pro-slavery measures—the proportion of genuine compromisers was dwindling, but those in the middle were able to combine with minorities on both sides to defuse the crisis temporarily.

The settlement lasted only four years. In 1854 Stephen Douglas, seeking southern support for a bill to establish territorial government for the remainder of the Louisiana Purchase, agreed to an explicit repeal of the Missouri Compromise. In 1850 national policy had shifted from congressional prohibition to congressional non­interference, he claimed. The Kansas-Nebraska Act sparked a political firestorm, rent the Democratic party, and created the Republican party. Antislavery and pro-slavery settlers raced into Kansas, hoping to control the first government and to bring the territory in as a state for their side. Although antislavery settlers vastly outnumbered pro-slavery ones, a combination of force, fraud, and manipulation by the Democratic administration produced a pro-slavery constitution. Douglas, seeing this as a mockery of genuine popular sovereignty, broke with the administration, further destabilizing the political situation.

The Supreme Court added to the conflict when it gave the Constitution a radically pro-slavery interpretation in the 1857 Dred Scott case. A decade earlier, Dred Scott had sued for his freedom, since his owner had taken him for long periods into free states and territories. He won in the Missouri trial court, which applied the principle of “once free, always free.” The Missouri Supreme Court reversed the decision, however, reflecting the breakdown of interstate comity on the slavery issue. Scott then brought suit in federal court, and finally the Supreme Court in 1856. Under the 1850 precedent of Strader v. Graham, the case could have been easily disposed of: the Supreme Court would not review a state supreme court decision regarding the status of a slave. But Chief Justice Taney, enraged at the dissenting opinions being prepared by the two anti-slavery justices, decided to write a more comprehensive opinion.

The two essential points of Taney’s decision were that Congress had no power to prohibit slavery in the territories, and that blacks could not be citizens of the United States. The decision appeared to make the Douglas-Democratic popular sovereignty and Republican Wilmot proviso positions unconstitutional, and to endorse the Calhounite view of slavery and the Constitution. It set the stage for the most dramatic debate on the issue, between Douglas and Abraham Lincoln in the 1858 Illinois senate campaign. The Republican party began in opposition to the repeal of the Missouri Compromise and the opening of the territories to slavery. Lincoln suggested that the decision was part of a campaign to nationalize slavery, and that a “second Dred Scott decision” would declare that no state could prohibit slavery. He claimed that Douglas was a party to this conspiracy. Douglas’ popular sovereignty was an unreliable doctrine to prevent the spread of slavery into the territories; even more, Douglas himself was not reliable because of his moral indifference to slavery. Lincoln and the Republicans proposed to repeal the Kansas-Nebraska Act, prohibit slavery in the territories, and reverse the Dred Scott decision.

Douglas staked all on his popular sovereignty principle. While he was personally opposed to slavery, he believed that the national government should allow local majorities to decide whether slavery was right or wrong for them. He claimed that he had stood up for it against abolitionists who would deny the right of territories to have slavery, and against the administration when it tried to impose a pro-slavery constitution on Kansas against the will of the majority. Lincoln and the Republicans called for a war on slavery, and would impose national uniformity and destroy states rights and local self-government. Douglas further accused the Republicans of not respecting the final authority of the Supreme Court to interpret the Constitution, while Douglas accepted Dred Scott and saw no appeal of the decision above the Supreme Court. He believed that popular sovereignty remained possible under Dred Scott, and agreed with the Court that blacks had no rights beyond those that whites might extend to them, while he accused the Republicans of favoring social and political equality for inferior races. In the state legislature elections (US senators were chosen by state legislatures until 1913), Republicans won more votes than the Democrats but, due to pro-Democratic apportionment, the Democrats got a majority of seats and returned Douglas to the Senate.

Lincoln succeeded in wresting leadership of the antislavery political movement from Douglas to the Republicans. Sectional animosity grew before the 1860 elections, particularly after John Brown’s 1859 attempt to incite a slave rebellion in Virginia. The Democratic party split at its 1860s convention when Douglas refused to accept the southerners’ demand for a territorial slave code. Lincoln was able to win the election solely with northern votes. Before he was inaugurated, South Carolina and six other states of the deep South declared that the Union was dissolved. They declared that the northern states had violated the terms of the constitutional contract, and the government had become destructive of the ends for which it was established. In effect, the states claimed to be able to exercise a right to revolution by the peaceful and legal means of secession.

Lincoln responded to the secession crisis with a firm but conciliatory inaugural address in March, 1861. He reiterated the policy of the Republican party, that it proposed only to keep slavery out of the territories, not to interfere with it in the states where it existed. They were even willing to accept an unamendable constitutional amendment that would forever prohibit Congress from touching the institution. But he would not accept any compromise on its containment. “One section of our country believes slavery is right, and ought to be extended, while the other believes it is wrong, and ought not to be extended,” he concluded. “This is the only substantial dispute.” He admitted that there was a constitutional obligation to return fugitive slaves, but also that the rights of free blacks and black citizens must be protected. Lincoln also repeated that the Supreme Court’s Dred Scott decision did not settle the issue, warning that judicial arrogation of exclusive constitutional interpretation was a threat to republican self-government. He explained that the Union was perpetual, and that there was no peaceful way of dissolving it. The government would maintain control of its property throughout the Union, but he assured the South that the government would not impose Republican officers in the South nor instigate hostilities.

Hostilities began in earnest the next month, when South Carolina militia fired upon US ships attempting to resupply Fort Sumter. Lincoln responded forcefully, declaring an insurrection and calling up militia and expanding the regular army. These moves led four states in the Upper South, most importantly Virginia, to secede. They also raised questions of the constitutional power of the president in time of war or rebellion. Lincoln summoned Congress into special session, but not until July. In the meantime, he spent and borrowed millions of dollars without legislative appropriation, imposed a blockade upon the South, and suspended the writ of habeas corpus. When Congress convened, Lincoln admitted that he had perhaps acted “without lawful authority,” but denied that any of his acts were “illegal.” He believed that the Constitution gave the executive power to act in emergency situations. For the most part, Congress and the northern electorate agreed, sustaining the administration in its conduct of the conflict.

The suspension of habeas corpus was probably the most controversial action. The right for a prisoner to appeal to a judge and to make the government give reasons for his detention was among the oldest and most fundamental rights in the Anglo-American tradition--habeas corpus was known as “the great writ.” The Constitution provides that “The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it,” but does not specify who has the power to suspend it. Opponents of the administration claimed that the power, being in Article I, belonged to Congress. Chief Justice Taney embraced this interpretation when, on circuit in Maryland, he overturned the suspension. The administration, however, argued that in emergencies the executive needed speed and discretion that the legislature was incapable of providing. Lincoln ignored Taney’s order, and was able to continue his policy despite the attempts of courts and Congress to control the suspension.

Throughout the conflict, the anomalous nature of “civil war” beclouded constitutional analysis. While the administration never admitted that any states had seceded or that there was a “Confederate States of America,” it nevertheless imposed a blockade on the South, an act of war between sovereign belligerents according to international law. It similarly treated captured Confederate soldiers and sailors as prisoners of war, not as bandits or pirates. No rebels were convicted of treason; instead, Congress enacted sedition and confiscation acts to prosecute them. Most controversial was the use of military tribunals to try civilians. During the war, the Supreme Court ruled that it could not hear appeals from military commissions, which were not “courts” under the Constitution. After the war, the Court ruled that the government could not use military tribunals in places remote from combat where ordinary civil courts were operating. Congress removed the Court’s jurisdiction in such cases during Reconstruction, and government again used military courts during World War II. Their status remains a question today. But, on the whole, the deprivation of civil liberties was limited, and usually war-related.

The war overshadowed a significant turn in American political development. The Republican party established itself as the dominant party for the next seventy years. The successor to the Federalists and Whigs, it embraced the Hamiltonian program of national mercantilism. The US became a high-tariff country, and Congress created a system of national banks, though it did not reestablish the Bank of the United States. The federal government subsidized internal improvements, especially a continental railroad system. Some policies, such as conscription, paper money, and the income tax, were temporary and war-related; others, such as the pensions provided for Union Army veterans, continued for many decades.

Federal policy regarding slavery was of overwhelming importance. Though Lincoln made clear that the Republicans foreswore any intent to interfere with slavery where it existed, the war drove them to do so. Congress provided for the emancipation of slaves used to support rebel military action in 1862, and later that year Lincoln issued the Emancipation Proclamation, freeing all slaves in parts of the country still in rebellion. Issued as a war measure under his power as commander-in-chief of the armed forces, it fundamentally altered the nature of the war. Finally, slaves in the loyal slave states and parts of the Confederate states under Union control were emancipated by the Thirteenth Amendment, which abolished the institution. Northern military triumph in April, 1865 and the ratification of the Thirteenth Amendment in December established the two definite results of the Civil War—the end of secession and slavery.

Postwar statesmen had a twofold goal: to restore the southern states to their proper relation to the Union, and to secure the freedom of the former slaves. National policy was in the hands of moderate Republicans in Congress, who faced recalcitrant southern whites and Democrats on the one hand and the radical wing of their party on the other. The Democrats wanted “the union as it was and the Constitution as it is”—in other words, as little political alteration as possible. The radicals sought profound changes in the southern states, and were willing to keep them out of the Union and fundamentally alter the federal system to do so.

Controversy over national policy was already present during the war. At the end of 1863, President Lincoln issued a Proclamation of Amnesty and Reconstruction, proposing to restore rebel states once ten percent of their population swore an oath of loyalty to the United States, agreed to recognize the freedom of emancipated slaves, and excluding from government only those rebels who had previously violated an oath to uphold the Constitution. Several states under the control of Union Army forces were ready for readmission by 1864. Congress, on the other hand, was concerned about its own role in the reconstruction process, and also wanted to impose more stringent terms on the South. After Lincoln vetoed a radical reconstruction plan, the radicals prevented the readmission of Lincoln’s Louisiana government.

This impasse continued through the end of the war and Lincoln’s assassination. Andrew Johnson, a loyal Tennessee Democrat, had been chosen for Lincoln’s running mate in 1864 when the Republican party campaigned as the “Union Party.” A Jacksonian with no love for the plantation elite of the South, he sometimes gave voice to a vindictive policy. On the other hand, Johnson was a white supremacist with no great concern for Negro rights. He largely followed Lincoln’s lenient policy, proclaiming the rebellion at an end in May, 1865 and expecting the rebel states to reenter Congress in December, 1865.

Congress seized control of the reconstruction process, convinced that Johnson’s policy would squander the fruits of victory, sending the message that 400,000 Union soldiers had died in vain. Southern states sent prominent rebels as their representatives and senators, including erstwhile Confederate Vice-President Alexander H. Stephens. Moreover, southern legislatures had enacted harsh “black codes” that meant to keep the freedmen as close to slavery as possible, congruent with the Dred Scott view that free blacks were not citizens. The Republicans refused to seat the southern congressmen while they devised a new policy. The first step in this process was the extension of the Bureau of Refugees, Freedmen, and Abandoned Lands, an Army agency meant to cope with the destruction and privation wrought by the war. It also passed the Civil Rights Act of 1866, which declared blacks to be citizens and prohibited states from depriving them of basic civil rights. It hoped to guarantee equal treatment in criminal justice, and to secure black property rights, particularly by giving them access to courts and enabling them to enforce contracts. Johnson vetoed both bills as unconstitutional usurpation by the national government of state power, and disputed that Congress could do anything while eleven states were not represented.

The Republicans overrode Johnson’s veto of the Civil Rights Act and later of the Freedmen’s Bureau Act. They also began to pursue a more comprehensive plan to settle outstanding issues of reconstruction. The Fourteenth Amendment was the result. The first section of the amendment essentially restated the Civil Rights Act, ensuring that a subsequent Congress could not repeal it. It defined citizenship on the basis of birth within the United States, and prohibited any state from abridging the “privileges and immunities” of citizens. It also held that state could not “deprive any person of life, liberty, or property without due process of law; nor deny to any person… the equal protection of the laws.”

The amendment also addressed the politically difficult issue of black voting. Voting was generally not considered a fundamental civil right, but a political right, along with the right to hold office or serve on juries. Most northern states did not allow blacks to vote, and black enfranchisement remained unpopular among northern whites. But one of the ironic effects of the abolition of slavery was that southern states would gain seats in the House, since blacks would count as five-fifths, rather than as three-fifths, of a white person. The amendment thus provided that states would lose representation in the House of Representatives if they denied the right to vote on the basis of race. It did not compel any state to enfranchise blacks, but it allowed northern states to limit the right to vote to whites without suffering very much loss of political power. It thus attempted to avoid black suffrage in the North, where the Republicans were vulnerable on the issue, while it provided an incentive for black suffrage in the South, where the Republican party depended on it.

The Fourteenth Amendment provided that nobody could hold federal or state office if he had taken and oath to support the Constitution and then violated it by engaging in the rebellion. But it permitted Congress, by a two-thirds vote, to remove this disqualification. It thus removed the President’s power to pardon former rebels. Initially it disqualified about 100,000 southerners, but by the end of the century Congress lifted all disqualifications. Finally, the amendment guaranteed the public debt that the Union had acquired in suppressing the rebellion, and forbade any state to pay debt acquired in rebellion.

Ratification of the Fourteenth Amendment became the price of readmission for the confederate states. But every one except Tennessee refused to do so, hoping that the 1866 elections would provide a more lenient Congress. Instead, the elections strengthened the radical Republicans. In 1867, Congress enacted a Military Reconstruction Act. The Army would remain in the South and oversee the drafting of new constitutions, all of which would include black suffrage. These legislatures in turn ratified the Fourteenth Amendment. Radical as the act appeared, it did not go so far as to confiscate and redistribute property—the radical aspiration to provide former slaves with “forty acres and a mule” from their former owners. The idea of black civil and political equality was denounced by most southern whites, many of whom refused to participate in the constitutional and political process. Congress originally required that the state constitutions be ratified by a majority of all registered voters, but had to lower the standard to a majority of participating voters. This was a sign of the fragility of the new state governments and their lack of basic legitimacy in the eyes of most whites.

President Johnson was unable to prevent Republican legislation, but he did try to hobble its enforcement in the South. Congress in turn tried to limit the president’s power, particularly by the Tenure of Office Act, which curtailed his removal power. Though the act was of doubtful constitutionality, and though it was doubtful that Johnson violated it, the Republicans finally impeached him when he fired the Secretary of War in 1868. Johnson narrowly escaped conviction in the Senate, but became less of an obstruction to Republican policy.

Seven of the confederate states were readmitted in time for the 1868 elections and the last three in 1870. By this time, the Republicans added ratification of the Fifteenth Amendment to the readmission requirements. This amendment prohibited any state from depriving adult males of the right to vote on the basis of race. It actually enfranchised more blacks in northern than southern states. However, it permitted states to use racially-neutral criteria that would have the effect of racial disfranchisement— literacy tests, poll taxes, and the like. By the end of the century, when white Democrats had regained control of all the southern states, it would be effectively nullified.

For a time, though, southern states engaged in an unprecedented bi-racial democratic politics. These Reconstruction governments undertook a great deal of controversial economic promotion and progressive social welfare legislation. They were also as corrupt and venal as many other late 19th century state and local governments, which added to their lack of legitimacy in the eyes of southern whites. Southern whites had used force and fraud to regain control of politics from the beginning of Reconstruction, and in 1870-71 Congress and the President responded forcefully with Enforcement or Ku Klux Klan acts. However, time eroded northern and Republican willingness to police civil rights in the South. The Republicans lost control of the House of Representatives in 1874, by which time a majority of the confederate states had been “redeemed” by the Democrats. In a parting gesture, the lame-duck Congress enacted the Civil Rights Act of 1875, which outlawed segregation and discrimination in places of public accommodation (other than public schools), going beyond civil and political and into “social” equality.

The Supreme Court stayed out of Reconstruction controversy. It came under the control of Republicans during the war, and treated most Reconstruction issues as “political questions.” When it appeared that the Court might strike down the operation of military tribunals under the Military Reconstruction Act, Congress prevented this by removing its jurisdiction in such cases. While some federal courts displayed a willingness to read Reconstruction statutes and amendments broadly, to facilitate vigorous protection of civil rights, on the whole the judiciary followed the moderate policy of Congress, and followed the national mood into neglect as the century moved on.

The Court first interpreted the Fourteenth Amendment in the Slaughterhouse Cases of 1873. Curiously, this case did not involve the freedmen at all, but was brought by New Orleans butchers who objected to a statute that forced them to practice their trade in a monopoly abattoir chartered by the state legislature. This act, they claimed, deprived them of privileges and immunities due to US citizens, deprived them of liberty and property without due process of law, and denied them the equal protection of the law. The Court denied their claim. The majority held that the principal, if not exclusive, concern of the Fourteenth Amendment was the rights of former slaves. It interpreted “privileges and immunities” in so narrow a fashion as to render it a virtually empty phrase. It did not regard the due process and equal protection clauses to prohibit all “class legislation”—laws, as in this case, that benefited a particular interest group and burdened others. Congress did not intend to deprive the states of their primary supervision of the ordinary rights of citizens, for to do so would be to overturn the federal system and establish a consolidated government. However, the four-man dissenting view, that the amendment did protect a wide range of property rights against state abridgement, would come to be the majority view later in the century.

While the Court did uphold some efforts to prevent blatant legal discrimination against blacks, on the whole it continued to read the Reconstruction amendments in a limited way. Most important, it held that the Fourteenth Amendment prohibited only discriminatory “state action.” While individual deprivation of rights could be prosecuted under the Thirteenth and Fifteenth amendments, a racial motive needed to be proved. In 1883, the Court struck down the Civil Rights Act of 1875. The Court held that the Fourteenth Amendment did not empower Congress to legislate directly for the states, but only to provide modes of relief against discriminatory state legislation. The Court suggested that, if places of public accommodation or states imposed segregation or discrimination, blacks could sue against such “state action.” But, while it left this door open, the Court expressed the flagging concern of public opinion in civil rights. It was time for blacks, the Court noted, to take “the rank of a mere citizen, and [cease] to be the special favorite of the laws….” Only Justice John Marshall Harlan dissented, advocating a more comprehensive view of the Reconstruction amendments.

Later in the century, when southern states began not simply to permit, but to impose, segregation and disfranchisement, the Court permitted it. In part this was due to new personnel on the Court, and to the rise of racism in western thought in general. Southern states began to enact segregation and disfranchisement laws in earnest in the late 1880s, and the Supreme Court upheld them in the 1896 case of Plessy v. Ferguson. At the most basic level, the Court accepted segregation as an ordinary exercise of the police power—in this instance, as a means of limiting disorder that arose from the natural antipathy of the races. Accepting the sociology and psychology of the day, the Court noted that “legislation is powerless to eradicate racial instincts or to abolish distinctions based upon physical differences.” It distinguished between civil and political equality on the one hand, and social equality, on the other. It denied that segregation necessarily imposed any stigma on blacks. Only Justice Harlan dissented, expressing an ideal of equality that formed the basis of civil rights movement of the next century. “In respect of civil rights, common to all citizens, the Constitution of the Untied states does not, I think, permit any public authority to know the race of those entitled to be protected in the enjoyment of such rights.” Although Harlan did not doubt that the white race was the “dominant race,” he objected to the effort to maintain its dominance by force of law. “There is no caste here,” he wrote. “Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.” But Harlan was part of dwindling band of racial liberals by the end of the nineteenth century, as Americans had largely turned their attention away from the legacy of slavery and the Civil War, and were preoccupied by the social effects of the rise of industrial capitalism.

• Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and Politics (1978).
• Jacobus ten Broek, The Antislavery Origins of the Fourteenth Amendment (1951).
• Paul Finkelman, An Imperfect Union: Slavery, Federalism, and Comity (1981).
• Eric Foner, Free Soil, Free Labor, Free Men: The Ideology of the Republican Party Before the Civil War (1970).
• David M. Potter, The Impending Crisis, 1848-61 (1979).
• Harry V. Jaffa, Crisis of the House Divided: An Interpretation of the Lincoln-Douglas Debates (1959).
• Mark Neely, The Fate of Liberty: Abraham Lincoln and Civil Liberties (1991).
• Herman Belz, Abraham Lincoln, Constitutionalism, and Equal Rights in the Civil War Era (1998).
• Richard F. Bensel, Yankee Leviathan: The Origins of Central State Authority in America, 1859-77 (1990).
• Herman Belz, A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861-66 (1976).
• Herman Belz, Reconstructing the Union: Theory and Policy During the Civil War (1969).
• Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (1978).
• Michael Les Benedict, The Fruits of Victory: Alternatives in Restoring the Union, 1865-77 (rev. ed., 1986).
• Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863-69 (1974).
• Earl Maltz, Civil Rights, the Constitution, and Congress, 1863-69 (Lawrence, 1990).
• Michael Perman, Reunion Without Compromise: The South and Reconstruction, 1865-68 (1973).
• Michael Perman, The Road to Redemption: Southern Politics, 1869-79 (1984).
• William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (1988).
• Michael Les Benedict, “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review 1978 (1979).