Constitution, U.S

By: Paul Finkelman

Source:

 Encyclopedia of African American History, 1619-1895: From the Colonial Period to the Age of Frederick Douglass

Constitution, U.S

The U.S. Constitution, written in 1787, did not specifically mention slavery or race. Throughout the Constitutional Convention the delegates talked about “blacks,” “Negroes,” and “slaves,” but the final document avoided these terms because northerners made it clear that using these terms would undermine support for the new form of government among their constituents. As James Iredell, one of North Carolina's delegates, told his state's ratifying convention, “The word slave is not mentioned” because “the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned, the southerners at the Convention were willing to do without the word slave.”

Proslavery Provisions of the Constitution

Despite the circumlocution, slavery was sanctioned throughout the Constitution. Five provisions dealt directly with slavery:

Taken together, these five provisions gave the South a strong claim to “special treatment” for its peculiar institution. The three-fifths clause also gave the South extra political muscle—in the House of Representatives and in the Electoral College—to support that claim.

Numerous other clauses of the Constitution supplemented the five clauses that directly protected slavery. Some provisions that indirectly guarded slavery, such as the prohibition on taxing exports, were included primarily to protect the interests of slaveholders. Others, such as the guarantee of federal support to “suppress Insurrections” and the creation of the Electoral College, were written with slavery in mind, although delegates also supported them for reasons having nothing to do with slavery. The most prominent indirect protections of slavery were:

Other provisions, such as those giving Congress jurisdiction of the national capital—what became Washington, D.C.—and the federal territories, allowed Congress to regulate slavery but did not require it be done.

All of these clauses dealt with slavery and status and not with race. The most misunderstood of these clauses is the three-fifths clause. This clause provided a mechanism for allocating representation in Congress. Under the clause, representation would be “determined by adding to the whole Number of free Persons … three-fifths of all other persons.” Thus, all free blacks would be counted as “free People.” The “other persons” referred only to slaves. As such, this clause did not say that blacks were three-fifths of a person but rather that representation in Congress would be based on population and that slaves would not be counted in the same way as free people. At the Constitutional Convention southerners pushed for counting slaves fully for representation, while opponents of slavery did not want to count slaves at all for purposes of representation.

During the debates over ratification some opponents of the Constitution (the anti-Federalists) focused on the protections of slavery, especially the provision that allowed the states to import slaves for at least twenty years. The slave trade was not necessarily a sectional issue. Some southerners, especially Virginians, opposed the trade because their state had an abundance of slaves. One New York opponent of the Constitution complained that the document condoned “drenching the bowels of Africa in gore, for the sake of enslaving its free-born innocent inhabitants.” A Virginian thought the slave trade provision was an “excellent clause” for “an Algerian constitution: but not so well calculated (I hope) for the latitude of America.” George Mason, who was also one of Virginia's delegates to the Convention, thought that importing slaves would “render the United States weaker, more vulnerable, and less capable of defense.” This was one of many reasons why he opposed the Constitution. Three Massachusetts anti-Federalists also feared the dangers of slavery. They noted that the Constitution bound the states together as a “whole” and “the states” were “under obligation … reciprocally to aid each other in defense and support of every thing to which they are entitled thereby, right or wrong.” Thus, they might be called to suppress a slave revolt or in some other way defend the institution. They could not predict how slavery might entangle them in the future, but they did know that “this lust for slavery, [was] portentous of much evil in America, for the cry of innocent blood, … hath undoubtedly reached to the Heavens, to which that cry is always directed, and will draw down upon them vengeance adequate to the enormity of the crime.”

In the South, however, supporters of the Constitution focused their attention on its proslavery provisions. At the Virginia ratifying convention, Governor Edmund Randolph, who had also represented his state at the Convention and become the first attorney general of the United States, praised the Constitution for protecting slavery. In response to a suggestion that the Constitution might threaten slavery, he challenged opponents of the Constitution to show “where is the part that has a tendency to the abolition of slavery?” He answered his own question by asserting, “Were it right here to mention what passed in [the Philadelphia] convention … I might tell you that the Southern States, even South Carolina herself, conceived this property to be secure” and that “there was not a member of the Virginia delegation who had the smallest suspicion of the abolition of slavery.” General Charles Cotesworth Pinckney of South Carolina similarly bragged to the South Carolina House of Representatives, “In short, considering all circumstances, we have made the best terms for the security of this species of property it was in our power to make. We would have made better if we could; but on the whole, I do not think them bad.” Noting that this was a government of limited power, Pinckney declared, “We have a security that the general government can never emancipate them, for no such authority is granted and it is admitted, on all hands, that the general government has no powers but what are expressly granted by the Constitution, and that all rights not expressed were reserved by the several states.” Talking about the fugitive slave clause, Pinckney told his South Carolina neighbors, “We have obtained a right to recover our slaves in whatever part of America they may take refuge, which is a right we had not before.”

In the North supporters of the Constitution tried to deflect criticism about slavery. Many argued that the slave trade clause was actually antislavery, because it would allow for the end of the trade in “only” twenty years. James Wilson, the Scottish born lawyer who was part of the Pennsylvania delegation to the Convention and would later serve on the U.S. Supreme Court, exaggerated the importance of this clause, erroneously claiming that the provision would, in fact, lead to an end to slavery in the nation. Many northern supporters of the Constitution implied, and some incorrectly declared, that the slave trade provision required that Congress end the African trade in 1808. Such supporters of the Constitution never mentioned the fugitive slave clause.

Implementing the Proslavery Constitution

Shortly after the Constitution went into effect, Congress passed the Fugitive Slave Law of 1793 to implement the fugitive slave clause. There was little controversy over this clause at the time, but opponents of slavery would later argue that Congress had no power to regulate the return of fugitive slaves. In the 1820s a number of northern states passed “personal liberty laws” to prevent the improper removal of free blacks from their jurisdiction under the weak evidentiary rules of the fugitive slave law.

After the Constitution was ratified, Quakers began to petition Congress to end the African slave trade. Southerners denounced these petitions, arguing that people should not be allowed to petition for an unconstitutional law. Ironically, at this time, the early 1790s, none of the states allowed the importation of new slaves from Africa. However, between 1800 and 1 January 1808 the Deep South imported about 100,000 new slaves. On 1 January 1808, however, a federal ban on the slave trade went into effect. It was not entirely successful, and some Africans were smuggled into the country. Congress passed new legislation in 1819, and Justice Joseph Story of the U.S. Supreme Court urged federal grand juries to investigate illegal slaving. But in the end Congress never appropriated enough money to stop the illegal trade, which continued throughout the period.

In this early period Congress also began to regulate race under its constitutional powers. The Naturalization Act of 1790 allowed only whites to become naturalized citizens. Similarly, the Militia Act of 1792 limited membership in that important civil body to white men. These early federal laws, which implemented the Constitution, affected blacks in ways that did not affect whites.

The first constitutional crisis over slavery and race did not emerge until 1819, when Missouri petitioned to enter the Union as a slave state. In 1787 Congress, under the Articles of Confederation, had banned slavery in the Northwest Territory. The language of the law prohibited slavery “north and west” of the Ohio River. In 1789 Congress reenacted this law, under its constitutional authority to regulate the territories. There was little controversy at the time, although in the mid-nineteenth century the U.S. Supreme Court would hold that Congress did not have the power to regulate slavery in the territories. In 1803 Ohio entered the Union as a free state, as did Indiana in 1816. Although some slaves were held in the region until the 1840s, the Northwest Ordinance of 1787 seemed to be leading to an end to slavery north and west of the Ohio River.

No one apparently thought much about the Northwest Ordinance in 1803, when the United States bought the Louisiana Purchase from France. In 1812 Louisiana came into the Union as a slave state. However, when Missouri sought admission as a slave state in 1819, northerners objected. They noted that most of Missouri was north and west of Ohio River, and thus it should be free under the Northwest Ordinance. Southerners argued that the Northwest Ordinance of 1787 extended only to the Mississippi River and that Missourians should be allowed to choose, for themselves, whether they wanted slavery or not. After two years of debate, Congress adopted the Missouri Compromise in 1820. Missouri came in as a slave state, Maine broke away from Massachusetts and entered the Union as a free state, and most important of all, Congress banned all slavery north and west of the southern boundary of Missouri. Many southerners opposed this compromise, arguing that Congress could not constitutionally prohibit citizens from bringing their slaves into the territories. In Dred Scott v. Sandford (1857) the Supreme Court would adopt this southern position.

In the 1820s a new issue arose, involving race and commerce. The Constitution gave Congress the sole power to regulate international and interstate commerce. South Carolina, however, passed laws requiring that any free black sailors who entered the state be incarcerated until their ships left. Henry Elkison, a free black from the Caribbean, sailing on an English ship, challenged his incarceration in the U.S. Circuit Court for South Carolina. In Elkison v. Deliesseline (1823), Justice William Johnson of the U.S. Supreme Court, while riding circuit, denounced the new South Carolina policy as a violation of the Constitution. Only Congress could regulate interstate or international commerce, including the right of sailors from other states or nations to enter a particular port. However, for technical reasons, Justice Johnson did not order the release of Elkison. By the end of the decade most of the southern Atlantic and Gulf states had passed laws requiring the incarceration of black seamen. The controversy over these laws continued until the Civil War and undermined interstate relations.

By 1830 the Constitution had been in effect for almost half a century. The document had weathered the storm of the Missouri crisis and slavery had not, for the most part, undermined the constitutional order. Congress had exercised its powers to ban the African slave trade and support the return of fugitive slaves, but neither had been fully implemented. A few laws, such as the Militia and Naturalization Acts, blatantly discriminated against blacks, but by and large there had been little constitutional controversy over slavery and race. The status of blacks under the Constitution changed dramatically during the period from 1830 to 1895. At the beginning of the period most blacks were slaves; at the end they were free people, citizens of the United States, officeholders and voters. The Constitution of 1787 protected slavery in a variety of ways, but between 1865 and 1870 three new amendments revolutionized the constitutional status of African Americans.

These six decades of change can be divided into four periods. The years from 1830 to 1861 were the age of slavery. The Constitution protected slavery in a range of ways. The three-fifths clause gave the southern states extra representation in Congress for their slaves; the fugitive slave clause, and laws passed in 1793 and 1850 to enforce it, allowed masters to recover slaves who escaped to the free states; and the domestic insurrections clause provided federal aid to suppress slave rebellions. Congressional power over the territories made slavery a constant source of political conflict. The issue of slavery in the territories became a major constitutional question during this period. The rights of blacks, as opposed to the status of slaves, became a constitutional issue throughout the decades leading up to the Civil War. The Dred Scott case (1857) raised questions about the status of blacks as well as the power of Congress to regulate slavery in the territories. Constitutional issues affected blacks in other ways as well. In the 1830s and 1840s Congress wrangled over whether to receive antislavery petitions. While not directly affecting the lives of African Americans, these debates revealed how slavery interacted with the nature of the Constitution. Meanwhile, abolitionists debated just what that nature was. Was the Constitution a proslavery compact, a “covenant with death and an agreement in Hell,” as the white abolitionist William Lloyd Garrison and his followers claimed? Or was it a more flexible document that would allow opponents of bondage to slowly chip away at the peculiar institution?

Secession and the Civil War raised new constitutional concerns. At the beginning of the crisis President Abraham Lincoln correctly argued that he had no power to touch slavery where it existed. The exigencies of war, however, altered political facts and constitutional understandings. By mid-1862 Lincoln found constitutional authority—in his role as commander in chief of the nation's armed forces—to end slavery in the rebellious states. Meanwhile, Congress discovered similar powers when it passed two confiscation acts to take slaves from Rebel masters. Before the Civil War was over, Congress had sent the Thirteenth Amendment to the states. When it was ratified in December 1865, the amendment ended all slavery in the United States.

The third period began with the end of the Civil War. In 1866 Congress passed the Fourteenth Amendment (ratified in 1868), which made all African Americans citizens of the nation and prohibited the states from denying them “due process of the law” or the “equal protection of the laws” while guaranteeing them the “privileges or immunities of citizens of the United States.” The Fifteenth Amendment (ratified in 1870) prohibited racial discrimination in suffrage. Furthermore, Congress passed legislation, including the Civil Rights Acts of 1866 and 1875, to implement the new amendments, and various enforcement acts to suppress racist violence from the Ku Klux Klan and other white terrorist groups. No longer the tool of slave owners, the Constitution now reflected the aspirations of the Declaration of Independence, promising that all people would be treated equally and would have full liberty to pursue happiness.

The fourth period began with the end of Reconstruction in 1877, as the nation retreated from its commitment to civil rights and equality. The retreat was gradual, and blacks did not lose all their rights at once. As late as 1890 blacks voted on the same basis as whites in much of the South. However, by this time southern blacks were increasingly losing their civil and political rights. The promises of the new amendments failed to materialize, as discrimination, repression, and segregation became common throughout the South, where more than 90 percent of all African Americans lived.

Slaveholder's Constitution

In 1830, while the young Frederick Bailey (later Douglass) was growing up as a slave in Maryland, the U.S. government remained fully in the hands of supporters of slavery. Since 1788 only two one-term presidents—John Adams and John Quincy Adams—had not been slave owners. The slave South had rarely lost a battle in Congress. Constitutionally, slavery was secure from national assault, as all commentators, politicians, and lawyers agreed that the Congress had no power to legislate on slavery in the states. At most, Congress could regulate slavery in the territories and in the District of Columbia. The territorial issue had been settled by the Missouri Compromise, which brought Missouri into the Union and allowed slavery to spread to some of the West but banned it in most of the territory acquired in the Louisiana Purchase. The District of Columbia remained firmly a slave city, with Congress never seriously considering laws to ban the institution in the nation's capital. As part of the Compromise of 1850 Congress banned the sale of people at public slave markets and slave auctions in the District but otherwise did nothing to remove the stain of slavery from the seat of the national government. The free black population grew rapidly in the District of Columbia before the Civil War, but free blacks there always lived a precarious legal existence.

In 1831 two events led to a new understanding of the relationship between slavery, blacks, and the Constitution. Nat Turner's rebellion in Virginia shook southerners, when slaves following their charismatic leader, Turner, killed scores of whites. After two days, whites suppressed the rebellion, using the militia, the army, and the navy. The rebellion reminded southerners of the importance of the Constitution, which provided that the national government would help suppress insurrections and rebellions. At the same time, however, the rebellion made southerners wonder about the danger of being in a Union with free states. Many southerners assumed—incorrectly—that Turner had been encouraged by northern opponents of slavery.

The rise of a new opposition to slavery also changed constitutional understandings. In 1831 William Lloyd Garrison began publishing the first abolitionist newspaper in the nation. Garrison demanded an immediate end to slavery. To make matters worse, he began mailing copies of his paper to editors and influential leaders around the nation. Southerners were shocked by this verbal assault on their most important social and political institution. A few years earlier, in 1828, David Walker, a free black in Massachusetts, had published a scathing attack on slavery, urging slaves to revolt. Walker'sAppeal led southerners to demand his arrest, but officials in Boston refused to help them, noting that he had not committed any offense that could be regarded as a crime in Massachusetts. Walker died under mysterious circumstances only months after publishing the Appeal, but the freedom of the press issues raised by Walker's Appeal and by Garrison's aggressive use of the press to attack slavery would not go away. Nor did the more global questions of slavery and freedom of expression disappear.

At issue was an understanding of constitutional rights. Officials in Boston may not have liked what Garrison and Walker had to say, but they believed that these men's speech was constitutionally protected. The First Amendment did not yet apply to the states, but the states had their own constitutional protections of free speech. Southern whites, on the other hand, did not believe that freedom of speech included the right to attack slavery. Thus, starting in the late 1820s and early 1830s, there was a profound change in the way northerners and southerners viewed the Constitution and constitutional rights. From the 1830s until the Civil War the South would remain a closed society in which no one, black or white, was free to discuss abolition or any serious opposition to slavery. In 1858 a white North Carolinian, Hinton Rowan Helper, attacked slavery, arguing in his book The Impending Crisis that the institution was detrimental to the interests of non-slaveholding whites. Helper was forced to leave the state, fearful that he would be murdered for his views.

In the mid-1830s abolitionists began to petition Congress to limit slavery. The petitions focused on those areas where the federal government could affect slavery: in the territories and the District of Columbia and through enforcement of the ban on the African slave trade and a repeal of the Fugitive Slave Law. The House of Representatives adopted a standing rule—known as the gag rule—that prevented any of these petitions from being read on the floor of the House. This prohibition led to an eight-year battle (1836–1844) in the House, pitting supporters of the right to petition against southerners and their northern allies, who wanted to prevent any debates over slavery. The strongest support for petitioning came from John Quincy Adams, the former president who had been elected to Congress after he left the White House. In the end, the petition campaign highlighted the way in which slavery undermined constitutional rights for whites. After 1844 Congress ceased to bar antislavery petitions. By this time the gag rule had become part of the larger, polarizing debate over the constitutional power of Congress to limit the spread of slavery.

In the 1840s the constitutional debate turned to the territories. Opponents of slavery argued that the annexation of Texas violated the Constitution because it was accomplished by simple legislation rather than a treaty, which would have required the support of two-thirds of the Senate. That would have been impossible to achieve. The annexation led to a war with Mexico, and opponents of slavery tried to ban the institution in the territories acquired in that war. Southerners argued that they had a constitutional right to settle in the new territories—with their slaves.

Conflict over the status of slavery in the new territories led to a national crisis, which was resolved with the Compromise of 1850. Congress regulated slavery in three areas. The compromise banned the slave trade in the District of Columbia, which came under Congress's plenary powers to control the seat of the national government. It allowed slaves to be brought into all of the new territories acquired from Mexico except California, which was admitted as a free state—both of these actions falling under Congress's power to regulate the territories and admit new states. Finally, the compromise contained a new and much harsher fugitive slave law, which created federal commissioners in every county to aid in the return of runaway slaves. This was the first time in the nation's history that Congress had created law enforcement mechanisms at the local level.

All of these matters were at the periphery of slavery, but that was consistent with constitutional understanding at the time. With the exception of a few radical abolitionists, no one believed that Congress had the power to end slavery in the states. Thus, constitutional questions centered on those areas where Congress had power, such as the territories and the fugitive slave clause.

In the modern era, constitutional law is usually understood to be determined by the Supreme Court, but for most of the antebellum period the Supreme Court was rarely involved with slavery. In the 1830s the Court did not hear any significant cases involving slavery. During the next two decades, however, it heard a number of them. In two 1841 cases the Court avoided major constitutional questions. Groves v. Slaughter involved a state constitutional provision in Mississippi banning the importation of slaves for resale. This was not an antislavery provision but rather an attempt to limit the outflow of capital from the state. The Court avoided any important constitutional interpretation by holding that the Mississippi provision had never been implemented. In United States v. the Amistad, decided in the same year, the Court did not face a constitutional issue either. The issue before the Court concerned an interpretation of a treaty with Spain and the factual question of whether the blacks on the Amistad had been born in Africa and illegally brought to the New World or whether they had been born in Cuba and were thus legally held as slaves. The trial court found them to be Africans who had been illegally taken to Cuba, and the Supreme Court agreed. This case had an enormous impact on the growth of the antislavery movement but lacked any significant constitutional issues.

Vastly more important in terms of constitutional interpretation regarding slavery were Prigg v. Pennsylvania (1842) and Dred Scott v. Sandford (1857). In Prigg the Court upheld the constitutionality of the Fugitive Slave Law of 1793 while striking down northern laws that impeded the return of fugitive slaves. In this case the Court struck down state laws designed to prevent the kidnapping of free blacks. The Court ruled that these laws unconstitutionally interfered with the right of masters to recover their runaway slaves. Justice Joseph Story's opinion was a powerful endorsement of the proposition that the Constitution not only sanctioned slavery but also defined slaves as a singular sort of property with special constitutional protection.

Dred Scott v. Sandford was the Court's most important decision on slavery. In an analysis of the Constitution that defied logic and seemed to run counter to the wording of the document, Chief Justice Roger B. Taney held that Congress could not legislate for the territories in any significant way, and thus the portion of the Missouri Compromise that banned slavery in the western territories was unconstitutional. On somewhat stronger ground, Taney held that the Fifth Amendment prevented the emancipation of slaves in federal territories because this would be a taking of private property without just compensation. The Fifth Amendment prohibited the national government from depriving anyone of “life, liberty or property without due process of law.” Abolitionists, of course, had argued that this provision meant slavery was unconstitutional because it deprived those in bondage of their “liberty.” Taney, however, focused on the “property” provision in the amendment and held that any law freeing a slave in a federal jurisdiction was an unconstitutional taking.

Taney was able to reach this result because he also effectively wrote blacks out of the Constitution. The chief justice found that blacks, even if free, could never be considered citizens under the Constitution. He declared that blacks were not included in the “word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which the instrument provides and secures to citizens of the United States.” Amplifying this assertion, he further claimed that at the time of the Constitution's framing and adoption, blacks were “considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and Government might choose to grant them.” According to Taney, blacks were “so far inferior, that they had no rights which the white man was bound to respect.” Thus, he concluded, blacks could never be citizens of the United States, even if they were born in the country and considered to be citizens of the states in which they lived.

The case was an enormous victory for the South and slavery, but it came at a huge price. Many in the North found the decision unacceptable. The New York Tribune declared that the decision had as “much moral weight as would be the judgment of a majority of those congregated in any Washington bar-room,” while the Chicago Tribune suggested that the decision was “part of a grand conspiracy against Freedom.” In a speech in New York City, Frederick Douglass called it a “devilish decision—this judicial incarnation of wolfishness.” However, Douglass was somewhat optimistic after the decision, believing that it would stimulate northerners to work harder to fight slavery. He predicted that “this very attempt to blot out forever the hopes of an enslaved people may be one necessary link in the chain of events preparatory to the downfall and complete overthrow of the whole slave system.”

Douglass was more prescient than he could have imagined. The Court's opinion energized the new Republican Party, which made Dred Scott the focus of its campaigns in 1858 and 1860. The most articulate critic of Dred Scott was Abraham Lincoln, a virtually unknown Illinois lawyer who had previously served just a single term in Congress. In 1858 Lincoln mounted a vigorous campaign against Stephen A. Douglas for the U.S. Senate seat from Illinois. In debating Douglas, Lincoln suggested a great conspiracy among Douglas, Taney, and Presidents Franklin Pierce and James Buchanan to destroy American liberties by nationalizing slavery. Lincoln lost the Senate race, but his opposition to Dred Scott made him a national figure. Two years later he was elected president on a platform that promised to prohibit slavery in the territories.

A year before the 1860 election, the abolitionist John Brown invaded Virginia with a handful of followers, hoping to start a great slave rebellion. Brown's band was trapped at Harpers Ferry, Virginia (now West Virginia), and most were killed or captured by a contingent of United States Marines led by Colonel Robert E. Lee of the United States Army. In December 1859 Virginia authorities hanged Brown. The John Brown raid underscored once again the constitutional protections for slavery, as the national government suppressed this attack on the South's peculiar institution.

Civil War Era

Lincoln's election stunned the South. For the first time in American history there was a president who promised to prevent the spread of slavery and otherwise challenged the institution's legitimacy. By the time Lincoln took office, seven states had passed ordinances of secession and claimed to no longer be part of the United States. Lincoln's first inaugural address, given on 4 March 1861, was a mixture of political theory, appeals to patriotism, and a lesson in constitutional law. Lincoln denied that the southern states had the right to secede under the Constitution. He also reminded the South that as president, he could not interfere with slavery there. He declared at the very beginning of his speech, “I have no purpose, directly or indirectly, to interfere with the institution of slavery where it exists. I believe I have no lawful right to do so, and I have no inclination to do so.” He also quoted from the Republican Party platform, which reaffirmed “the right of each State to order and control its domestic institutions according to its own judgment exclusively.”

Despite Lincoln's pleas, the secessionists maintained their position, and in April 1861 the Civil War began. From the onset Lincoln stated that his goal was to preserve the Union. Slavery, however, was the root cause of the war, and from the beginning the constitutional status of bondage was a critical issue. When the war began, Lincoln made clear again that he had no intention of disturbing slavery where it existed. He quickly countermanded General John C. Frémont's order emancipating all of the slaves in Missouri, a border slave state that had remained in the Union. He similarly rejected pleas from abolitionists to move against slavery in the Confederate states. His first strategy in holding the Union together was to ensure that none of the four loyal slave states—Delaware, Maryland, Kentucky, and Missouri—joined the Confederacy. He feared that if he made the war a crusade against slavery, these states would also leave the Union. When a group of ministers told Lincoln that if he freed the slaves, he would have God on his side, Lincoln allegedly responded that he would like to have God on his side but that he “needed Kentucky.”

Meanwhile, slaves acting on their own began to leave their masters and seek the protection of the U.S. Army. Initially, some soldiers returned slaves to their owners, in part because they believed the fugitive slave clause of the Constitution required them to do so. But in May 1861 General Benjamin Butler refused to return fugitive slaves sought by Virginia masters. Butler declared that the slaves were “contrabands of war” and thus could not be returned to masters living in areas claimed by the Confederacy. Lincoln acquiesced in the theory, and slavery began to crumble. Thus, by mid-1861 the Constitution's fugitive slave clause had become a dead letter, at least for slaves escaping from the Confederate states. This development illustrated how the Constitution had protected slavery. While they were in the Union and living under the Constitution, the states of the Slave South could count on federal support for the return of fugitive slaves. But when they left the Union, these states lost not only this protection but also the immense political power they had held in Congress, the courts, and the executive branch to protect slavery.

General Butler's brilliant characterization of slaves as “contrabands” was the beginning of a constitutional revolution. In August 1861 and March 1862 Congress passed the First and Second Confiscation Acts, allowing the slaves of some rebel masters to be seized and freed. In April 1862 Congress passed a law providing financial incentives for loyal masters who would free their slaves. At the same time Congress abolished slavery in the District of Columbia, providing compensation of only three hundred dollars per slave to masters. In September 1862 Lincoln announced the preliminary Emancipation Proclamation, declaring that in one hundred days—on 1 January 1863—he would use his power as commander in chief of the army to free slaves owned by persons in rebellion. On that date he did issue the Emancipation Proclamation, declaring that slaves in areas controlled by the Confederacy were free. Before the war this step would have been an unconstitutional taking of private property without compensation. Now it was considered, at least by Lincoln, to be a constitutionally permissible act necessary to win the war.

The events of 1861–1863 were constitutionally dramatic. Southern secession accomplished what three decades of abolitionist agitation could not accomplish: by leaving the Union, the South created circumstances that allowed for an interpretation of the Constitution that would permit the national government to free slaves not only in federal jurisdictions but also throughout much of the country. In June 1864 Congress repealed the Fugitive Slave Laws of 1793 and 1850. By the end of the war the vast majority of slaves had been freed. The Thirteenth Amendment, proposed in late 1864 and ratified in December 1865, freed the remaining slaves in the United States.

Meanwhile, starting in 1862, the United States began to enlist black soldiers. Frederick Douglass recruited black soldiers throughout the North for the Fifty-fourth Massachusetts Infantry Regiment, in which two of his sons served. By the end of the war more than 200,000 blacks had served in the army and navy, providing vital manpower for the war effort. This military participation gave African Americans an important new claim to constitutional rights. African Americans had fought and died to preserve the Constitution. They now had a right to demand not only that they be protected by it but also that they have full citizenship rights under it.

Reconstructing the Constitution

The Civil War destroyed slavery, but the place of African Americans in the new regime was uncertain. In the months following their defeat, many of the former Confederate states passed repressive laws designed to reduce blacks, as much as possible, to second-class citizenship. The new laws limited the right of blacks to travel, live in towns, practice some professions, testify in court, or engage in various economic activities. Alabama's law “Concerning Vagrants and Vagrancy” allowed for the incarceration in the public workhouse of any “laborer or servant who loiters away his time, or refuses to comply with any contract for a term of service without just cause.” Mississippi's Civil Rights Act of 1865 provided that if any laborer quit a job before the end of the contract period, he would lose all wages earned up to that time. Thus, if a black laborer signed a contract to work for a planter for a year and left after eleven months, he would get no wages. This legislation allowed employers to mistreat and overwork laborers, knowing that they dare not quit. Indeed, a shrewd employer could purposely make life miserable for workers at the end of a contract term in the hope that they would quit and forfeit all wages.

Mississippi's law further declared that any blacks “with no lawful employment or business” would be considered vagrants and could be fined up to fifty dollars. Any black who could not pay the fine would be forcibly hired out to whoever would pay it, thus creating another form of unfree labor. The same act created a one-dollar poll tax for all free blacks. Any blacks not paying the tax could be declared vagrants and thus assigned to work for white planters—often the persons who had owned them when they were slaves. These laws also prohibited blacks from renting land or houses in towns or cities, thus, in effect, forcing them into the countryside, where they would be doomed to agricultural labor. Throughout the South blacks faced violent and murderous repression by individuals and bands of white terrorists. General Carl Schurz, after visiting the region in 1865, concluded that although many, perhaps most, southern whites conceded that blacks were no longer the slaves of individual masters, they also intended to make them “the slaves of society.”

In December 1865 Congress authorized the Joint Committee on Reconstruction to investigate conditions in the South. The committee consisted of six senators and nine congressmen and included such leading Republicans as Thaddeus Stevens, John Bingham, and Justin Morrill. The committee's report, based on interviews with hundreds of people, was massive, amounting to about eight hundred pages. In it the committee reminded the nation that the former slaves had “remained true and loyal” throughout the Civil War and “in large numbers, fought on the side of the Union” and that the nation had a duty to protect these people. The committee found that southern leaders still “defend[ed] the legal right of secession, and [upheld] the doctrine that the first allegiance of the people is due to the States.”

From everywhere in the South the committee heard stories of violence and intimidation. Lieutenant Colonel R. W. Barnard, who was stationed in Tennessee, was asked if it was safe to remove troops from that state. He replied:

"I hardly know how to express myself on the subject. I have not been in a favor of removing the military. I can tell you what an old citizen, a Union man, said to me. Said he, “I tell you what, if you take away the military from Tennessee, the buzzards can't eat up the niggers as fast as we'll kill 'em.”"

Major General John W. Turner reported that in Virginia “all of the [white] people” were “extremely reluctant to grant to the negro his civil rights—those privileges that pertain to freedom, the protection of life, liberty, and property before the laws, the right to testify in courts, etc.” Turner added that whites were “reluctant even to consider and treat the negro as a free man, to let him have his half of the sidewalk or the street crossing.” They would only “concede” such rights to blacks “if it is ever done, because they are forced to do it.” He noted that many whites were “disposed to ban the negro, to kick him and cuff him, and threaten him.”

A Virginia farmer admitted that whites in the state “maltreat [blacks] every day” and that blacks had “not a particle” of a chance “to obtain justice in the civil courts of Virginia.” He declared that a black or “a Union man” had as much likelihood of obtaining justice in Virginia as “a rabbit would in a den of lions.” United States District Judge John C. Underwood described the cold-blooded murder of a white Unionist by a returning Confederate officer. The state did not prosecute anyone for the crime. Underwood believed that if the army abandoned the state and left the fate of the freedmen to the native whites, the situation would be a disaster. He quoted a “most intelligent” Virginian who declared that “sooner than see the colored people raised to a legal and political equality, the southern people would prefer their total annihilation.” Witnesses from the Carolinas and Georgia told about beatings, gruesome torture, and murders of former slaves and about black children who were kidnapped so that they might be sent to Cuba, where slavery was still legal.

In the wake of this testimony the committee wrote the Civil Rights Act of 1866. During debates over this bill Senator Charles Sumner of Massachusetts received a box containing the finger of a black man. An accompanying note read, “You old son of a bitch, I send you a piece of one of your friends, and if that bill of yours passes I will have a piece of you.” Congress was not intimidated, passing the law and then enacting it over President Andrew Johnson's veto. The putative authority for the new law was the Thirteenth Amendment, which not only prohibited slavery in the nation but also empowered Congress to enforce the amendment “with appropriate legislation.” Some members of Congress, however, were worried that the Civil Rights Act could not be justified under an amendment to end slavery. Thus, in 1866 the committee also drafted the Fourteenth Amendment.

This amendment had a number of purposes. Much of the debate in Congress was over the status of former Confederates. The amendment did not directly enfranchise blacks but instead had a provision to reduce southern representation in Congress if black men were not allowed to vote under the same rules as white men. Section 1 of the amendment explicitly overruled the Dred Scott decision, declaring that all persons born in the United States, including former slaves, were “citizens of the United States and of the State wherein they reside.” The amendment also prohibited the states from making or enforcing “any law which shall abridge the privileges or immunities of citizens of the United States” and further declared that no state could “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.” The states ratified this amendment in 1868. In 1870 they ratified the Fifteenth Amendment, which provided that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or any State on account of race, color, or previous condition of servitude.”

Frederick Douglass was an active supporter of both amendments. He found himself at odds, however, with many former allies—female abolitionists who opposed the amendments because they did not also enfranchise women. Douglass argued that blacks needed special political and constitutional protection at this time and that it was “the Negro's hour.” He had been a lifelong supporter of women's suffrage, but he understood that blacks were in desperate need of political power in a way that women were not. White terrorists like the Ku Klux Klan were targeting blacks throughout the South because of their race. Whatever disabilities women faced, they paled in comparison with the threat of lethal violence being directed at blacks.

The new amendments made blacks citizens of the nation and black men voters. Following these amendments Congress passed important legislation to protect these new black voters and suppress the Ku Klux Klan. During Reconstruction more than fifteen hundred blacks held public office throughout the South, serving in state legislatures and state constitutional conventions and as sheriffs, city councilmen, and U.S. congressmen. Two served in the U.S. Senate, one as a governor, one on a state supreme court, and more than a dozen as heads of various state agencies or as statewide officers, such as secretary of state or state treasurer. Frederick Douglass remained a private citizen at this time, editing the New National Era in Washington, D.C. However, he remained active in politics and a leader in the Republican Party.

From 1861 to 1870 vast constitutional changes in the nation had come about through war, legislation, and the amendment process. In just nine years there had been a remarkable revolution in constitutional order. Ideas of state sovereignty were dead, never to rise again in a way that would threaten the nation. Slavery was abolished, and African Americans were, at least in theory, full citizens. Congress implemented this constitutional revolution with the Civil Rights Act of 1866, the Freedmen's Bureau Act, and the three Force Acts of 1870 and 1871 (the third is commonly called the Ku Klux Klan Act), which successfully suppressed a great deal of terrorism that had been directed at blacks and their white allies in the South. The Civil Rights Act of 1875 added one more layer of legal protection for the former slaves by guaranteeing them access to public accommodations. As in no other period of the nation's history, constitutional change was not driven by the Supreme Court, which in the postwar decade had little to say about Emancipation or black freedom.

Failure of Constitutional Change, 1877–1895

The presidential election of 1876 ended in chaos, with both the Democrat Samuel Tilden and the Republican Rutherford B. Hayes claiming victory. At issue were disputed votes in South Carolina, Florida, and Mississippi. In all three states intimidation, vote fraud, and violence had prevented many blacks from voting or led to their votes' not being counted. By this time most U.S. troops had been removed from the South and federal supervision of elections was virtually nonexistent. Many former Confederates and their sons had steadily gained political power and reasserted their economic power as landowners in an overwhelmingly agrarian society. They combined to stop many black voters. With the election in the balance, Congress appointed a complicated “electoral commission,” which by one vote awarded the disputed electoral votes to Hayes.

The “Compromise of 1877” put Hayes in the White House but led to removal of the last federal troops from the South. Reconstruction was now officially over. Its closure prompted acceleration in the gradual diminution of constitutional rights for blacks. By the time of Frederick Douglass's death in 1895, African Americans would still be citizens of the nation, but in many respects they would be second-class citizens. These changes did not take place all at once, and, indeed, blacks continued to hold political office and participate in politics after the formal end of Reconstruction. Frederick Douglass, for example, held office for the first time under Hayes, serving as the U.S. marshal for the District of Columbia (1877–1881). Under Presidents James Garfield, Chester A. Arthur, and Benjamin Harrison, he would continue to hold federal office as the recorder of deeds for the District of Columbia (1881–1886) and as chargé d'affaires for Santo Domingo and minister to Haiti (1889–1891). Blacks held other offices as well in this period and continued to participate in politics, vote, and serve on juries, but gradually their claim on constitutional equality declined. While political change had much to do with these transformations, the main engine driving the decline of black rights was the United States Supreme Court.

In the Slaughterhouse Cases (1873) the Supreme Court offered a cramped interpretation of the privileges and immunities clause of the Fourteenth Amendment. Many supporters of this amendment believed that it would nationalize the Bill of Rights and give the federal courts the power to protect the civil liberties of former slaves. But the Court read the amendment narrowly and found that there were few national privileges and immunities to be protected. In United States v. Reese (1876) the Court struck down the Force Act of 1870, which was designed to protect black voters. In United States v. Cruikshank (1876) the Court reversed the convictions of white terrorists who had murdered about one hundred blacks in 1873 in Grant Parish, Louisiana, in what is known as the Colfax Massacre. In Hall v. DeCuir (1878) the Court struck down a Louisiana law that required integration on public transportation in the state. The Court said that this requirement interfered with interstate commerce because boats or trains coming from other states would have to integrate their seating patterns once they arrived in Louisiana.

The Court would not allow laws that blatantly discriminated against blacks. Thus, in Strauder v. West Virginia (1880) the justices struck down a West Virginia law that prohibited blacks from serving on juries. But in other cases, such as Virginia v. Rives (1880), the Court found that black defendants had no special right to have men of their race on their juries. In Neal v. Delaware (1881), however, the Court reversed the conviction of a black on the ground that no African Americans had ever served on a jury in the state. Thus, even though there was no law banning blacks from juries, the Court accepted the evidence that race discrimination was the rule in that state. In the Civil Rights Cases (1883) the Court held that most of the Civil Rights Act of 1875 was unconstitutional. The law prohibited discrimination in public accommodations, but the Court read the Fourteenth Amendment to limit only state action. Congress had no power, the Court declared, to force privately owned theaters or restaurants to serve blacks.

African Americans were appalled by these decisions. After the decision in the Civil Rights Cases, the prominent black journalist T. Thomas Fortune wrote in the New York Globe that “the colored people of the United States feel to-day as if they had been baptized in ice-water.” In Philadelphia there was a huge protest rally after the decision was announced. John Mercer Langston, one of the nation's leading black lawyers, said that the Court seemed “desirous of remanding us back to that old passed condition.” He found the decision “incomprehensible.” Frederick Douglass said that the decision “grievously wounded” African Americans. He compared it to the Fugitive Slave Law of 1850 and the Dred Scott decision. He asserted in a speech in October 1883 that “in humiliating the colored people of this country, this decision has humbled the Nation. It gives to a South Carolina or a Mississippi, Railroad Conductor, more power than it gives to the National Government.” Douglass longed “for a Supreme Court which shall be as true, as vigilant, as active, and exacting in maintaining laws enacted for the protection of human rights, as in other days was the Court for the destruction of human rights!”

In 1887 blacks in Baltimore formed the Brotherhood of Liberty, which might be considered the nation's first civil rights organization. In 1889 the Brotherhood published Justice and Jurisprudence: An Inquiry Concerning the Constitutional Limitations of the Thirteenth, Fourteenth, and Fifteenth Amendments. At over six hundred pages, this ambitious tome was designed to convince lawyers and jurists of the legitimacy of federal protections for civil rights. The arguments were sound, but they fell on deaf ears in the Supreme Court. Republicans in Congress still tried to protect civil rights. In 1891 Congressman Henry Cabot Lodge of Massachusetts courageously tried to pass a bill known as the “Lodge Federal Elections Bill” or the “Lodge Force Bill.” It passed the House but died in the Senate when a few western Republicans defected from their party's support for the bill. The handful of western Republicans opposing the bill were from silver-producing states where virtually no blacks lived, and they voted against black voting rights in return for the support of southern Democrats for free coinage of silver. As the Nation noted, the Lodge bill was “buried by a bargain between Democrats and free silverites.” A few years later the populist Democrat William Jennings Bryan would rail that “you shall not crucify mankind upon a Cross of Gold.” In this instance a few western Republicans and a passel of southern Democrats crucified black rights on a cross of silver.

Throughout the North, states passed their own civil rights acts following the Supreme Court's decision in the Civil Rights Cases, striking down the federal civil rights act of 1875. Most of them banned discrimination in public accommodations and on public transportation. A number repealed laws banning interracial marriage, and in 1896, the year after Douglass's death, Ohio passed the nation's first antilynching law. The constitutional rights of blacks were more or less secure in the North, although enforcement did not always comport with the lofty ideals of the statutes. But in 1890 most American blacks—more than 90 percent—lived in the South, where constitutional rights were left to the tender mercies of the former Confederates and their sons, who were intent on reversing, as much as possible, the racial progress achieved between 1861 and 1875.

See also Abolitionism; Adams, John, on African Americans; Antislavery Movement; Antislavery Press; Black Codes and Slave Codes; Black Seafarers; Brown, John; Buchanan, James; Butler, Benjamin Franklin; Caribbean; Civil Rights; Civil Rights Act of 1866; Civil Rights Act of 1875; Civil War; Civil War, Participation and Recruitment of Black Troops in; Compromise of 1850; Constitutional Convention, African Americans and; Democratic Party; Discrimination; Douglas, Stephen A.; Dred Scott Case; Emancipation; Fifteenth Amendment; Fourteenth Amendment; Free African Americans to 1828; Free African Americans before the Civil War (North); Free African Americans before the Civil War (South); Fugitive Slave Law of 1793; Fugitive Slave Law of 1850; Fugitive Slaves; Garrisonian Abolitionists; Harpers Ferry Raid; Hayes, Rutherford B.; Integration; Johnson, Andrew; Langston, John Mercer; Laws and Legislation; Lincoln, Abraham; Lynching and Mob Violence; Military; Missouri Compromise; Pierce, Franklin; Reconstruction; Republican Party; Riots and Rebellions; Slave Insurrections and Rebellions; Slavery; Slavery and the U.S. Constitution; Slave Trade; Stevens, Thaddeus; Sumner, Charles; Supreme Court; Thirteenth Amendment; Turner, Nat; Violence against African Americans; Virginia; and Voting Rights.

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