Equal Protection, Reconstruction, and the Meaning of the 14th Amendment
U.S. Law and Race Initiative
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09/10/2024
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26
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Professor of History, Dr. Kate Masur (Northwestern University), provides an in-depth look at the 14th Amendment, delving into the implications of equal protection under the law.
Dr. William Thomas and Dr. Sharlene Sinegal-DeCuir (Xavier University) will moderate the discussion and invite questions from the audience, including our students.
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- [00:00:04.130]We are hosting a series of webinars deepening the national conversation
- [00:00:09.458]on the legal history of race.
- [00:00:11.500]Today, we are excited to host a discussion about equal protection,
- [00:00:15.846]reconstruction, and the meeting of the 14th Amendment.
- [00:00:19.060]We are honored to have with us today
- [00:00:22.280]a wonderful panelist in discussion with our co-hosts.
- [00:00:25.340]Our panelist is Dr. Kate Masur,
- [00:00:28.120]who specializes in the history of race, politics, and law in the United States.
- [00:00:33.300]Her recent book, Until Justice Be Done: America's First Civil Rights Movement
- [00:00:38.392]from the Revolution to Reconstruction, was a finalist for the Pulitzer Prize in History
- [00:00:43.173]and winner of the Littleton-Griswold Prize from the American Historical Association,
- [00:00:47.700]the John Phillip Reid Book Award from the American Society for Legal History,
- [00:00:52.980]and the John Nau Book Prize in American Civil War Era History.
- [00:00:57.900]Masur recently coordinated a team that produced
- [00:01:01.500]Black Organizing in Pre-Civil War Illinois, creating community demanding justice.
- [00:01:06.460]Part of the Colored Conventions Project,
- [00:01:09.350]this online exhibit highlights early Black communities and Black activism in Illinois
- [00:01:14.080]and includes biographical profiles of 25 individual people.
- [00:01:18.280]Masur's other public scholarships include An Example for All the Land,
- [00:01:23.620]Emancipation, and The Struggle Over Equality in Washington, D.C.
- [00:01:28.160]and with Gregory Downs, The World the Civil War Made.
- [00:01:32.360]She has consulted extensively with museums and arts organizations,
- [00:01:37.220]including the National Constitution Center and the Newberry Library.
- [00:01:40.700]She was part of the editorial team that created Reconstruction:
- [00:01:44.957]the official National Park Service handbook,
- [00:01:47.400]and she co-authored with Downs, The Era of Reconstruction: 1861 to 1900:
- [00:01:53.608]A National Historic Landmark-Themed Study Published in 2017.
- [00:01:58.420]She was also a key consultant for the 2019 documentary Reconstruction: America After
- [00:02:03.840]the Civil War, and appeared in the recent CNN film, Lincoln Divided We Stand.
- [00:02:09.820]Our conversation today will be co-hosted by first, Dr. Sharlene Sinegal-DeCuir.
- [00:02:15.720]Dr. Sinegal-DeCuir teaches courses in African American history,
- [00:02:19.989]including slavery and servitude,
- [00:02:22.720]U.S. civil rights movement, and hip-hop, and social justice.
- [00:02:26.455]She has worked in the field of public history and has been featured on MSNBC, the History
- [00:02:32.260]News Network, has been quoted in the New York Times,
- [00:02:35.940]and published a New York Times op-ed article.
- [00:02:38.340]She has written several articles,
- [00:02:40.536]one of her most noted ones being published in the Journal
- [00:02:43.640]of African American History, titled "Nothing is to be Feared, Norman C. Francis, Civil
- [00:02:49.400]Rights Activism, and the Black Catholic Movement."
- [00:02:51.740]She is currently working on a book, undercontract with LSU press.
- [00:02:57.222]Dr. Sinegal-DeCuir has served as a member of the New Orleans Tricentennial Symposium
- [00:03:02.500]Committee, the New Orleans Public School Board Renaming Committee,
- [00:03:06.527]and the Louisiana Civil Rights Trail Site Review Committee.
- [00:03:09.960]She currently serves as the chair of the American Historical Association's
- [00:03:15.173]Nominations Committee and has served on the Committee on Minority Historians.
- [00:03:19.640]Dr. Sinegal-DeCuir is a board member for the Louisiana, excuse me, the Louisiana
- [00:03:24.620]Endowment for the Humanities, the Louisiana Supreme Court Historic Society,
- [00:03:30.020]and currently chairs the Helis Foundation John Scott Center.
- [00:03:34.320]Dr. Sinegal-DeCuir was awarded a $500,000 Andrew W. Mellon grant to
- [00:03:42.488]create the African-American
- [00:03:44.580]and African Diasporic Cultural Studies major at Xavier University of Louisiana.
- [00:03:50.520]And finally, Dr. Will Thomas is the Angle Chair in humanities, and Professor of History
- [00:03:57.490]at the University of Nebraska, and the College of Arts and Sciences
- [00:04:00.910]Associate Dean of Research and Graduate Education.
- [00:04:03.920]He served as chair of the Department of History from 2010 to 2016.
- [00:04:08.920]He has been a Guggenheim Fellow and a Lincoln Prize finalist.
- [00:04:12.920]He is the author of "A Question of Freedom:
- [00:04:15.255]Families Who Challenged Slavery from the Nation's Founding to the Civil War,"
- [00:04:18.920]about enslaved families in Maryland who sued for their freedom
- [00:04:22.510]in the decades after the American Revolution.
- [00:04:24.793]"A Question of Freedom" received the 2021 Mark Linton History Prize.
- [00:04:29.780]With partners Michael Burton and Kwakiutl Dreher,
- [00:04:33.051]he is producing a series of live-action animated documentary films.
- [00:04:38.180]The first of these films, "Anna," was released in 2018
- [00:04:41.996]and won Best Animation at the New Media Film Festival in Los Angeles.
- [00:04:47.540]The second, "The Bell Affair," is in production with funding
- [00:04:50.620]from the National Endowment for the Humanities.
- [00:04:54.010]Our co-hosts and our panelists are going to be in conversation
- [00:04:57.355]for about 35 minutes before we turn to your questions.
- [00:05:01.560]Live captioning will be available for audience members.
- [00:05:04.740]Please feel free to submit your questions at any time using the Q&A function on Zoom.
- [00:05:09.500]We will also take questions from our students
- [00:05:12.560]here live from the U.S. Law and Race Initiative's History 115.
- [00:05:17.640]Thank you, Dr. Masur, for being here now.
- [00:05:20.160]I'll turn things over to our co-hosts
- [00:05:22.570]and see you all again at the end of the discussion.
- [00:05:25.493]Dr. Masur, thank you so much for being here today to
- [00:05:30.360]share your expertise about this amazing subject.
- [00:05:33.760]We're going to go ahead and get started.
- [00:05:35.500]So my first question is, let's look at before the 14th Amendment.
- [00:05:40.980]Can you help us understand the question of civil rights prior to the Civil War?
- [00:05:47.580]What exactly was civil rights prior to the Civil War?
- [00:05:51.920]Well, thank you so much for having me and can everyone hear me okay?
- [00:05:57.000]Yes.
- [00:05:58.000]Okay, great. Yeah.
- [00:06:00.000]So it's great to be with you all and I can kind of see some of the students there as well.
- [00:06:06.340]And yeah, this sounds like such a wonderful class and a wonderful program and I'm really
- [00:06:10.160]honored to be part of it.
- [00:06:12.900]So the question of what were civil rights before the Civil War and what is sort of the
- [00:06:21.460]pre-history of the 14th Amendment?
- [00:06:24.435]and other civil rights, federal civil rights measures that we see starting
- [00:06:28.820]to take shape in the right after the Civil War.
- [00:06:31.660]There are a lot of ways to answer that question.
- [00:06:35.060]And but I guess, you know, I'll start by saying that one of the things I wrote about quite
- [00:06:40.240]a lot in my book is the struggles over race and rights in the free states
- [00:06:47.374]in the decades before the Civil War.
- [00:06:50.000]So I think one way that my thinking really shifted on.
- [00:06:53.640]And kind of how to think about what we might call the pre Civil War North was to really
- [00:07:01.020]envision that, first of all, that slavery, racial slavery, the slavery of people of African
- [00:07:09.300]origin and African descent was legal, permitted ,and practiced throughout
- [00:07:15.073]the British colonies of North America on the eve of the American Revolution,
- [00:07:20.339]and then as you guys probably are aware,
- [00:07:23.952]the places that we would now consider to be the North, especially the Northeast,
- [00:07:28.320]where there was more settlement and these were, you know, British colonies, began to,
- [00:07:35.000]in different ways abolish slavery, starting with Vermont, and Pennsylvania, Massachusetts,
- [00:07:42.340]and kind of wrapping up with, eventually, New York and New Jersey.
- [00:07:46.500]These places took the steps of abolishing slavery, meanwhile the nation was expanding,
- [00:07:53.360]with the Northwest Ordinance of 1787, and what ensued after that with the creation of
- [00:07:58.200]the states of Ohio, Illinois, Indiana, Wisconsin, and Michigan.
- [00:08:02.740]These states more or less barred slavery from existing there.
- [00:08:09.360]And so, I mean, to kind of make a long story short, everywhere in what we would consider
- [00:08:13.640]to be the pre-Civil War North and a lot of the Midwest, where territories were becoming
- [00:08:19.710]states, were essentially post-slavery societies, right?
- [00:08:23.220]So we think of the United States being kind of post-slavery after the
- [00:08:27.620]Civil War, when slavery is abolished.
- [00:08:30.880]But many of the same questions that were on the table right after the Civil War were already
- [00:08:36.460]on the table, not at the national level, but at the state and local level, because race-based
- [00:08:41.540]slavery was being abolished in these free states, or what become these free states.
- [00:08:46.100]And so the questions about, well, what are you going to do now?
- [00:08:49.580]Are you going to have a white supremacist society?
- [00:08:52.500]Are you going to have a society that practices racial egalitarianism
- [00:08:56.665]in some ways or in all ways?
- [00:08:58.840]All of these questions are on the table in the free states before we get to the Civil
- [00:09:02.960]War and slavery being abolished in the South, where it's obviously
- [00:09:07.149]a lot bigger and a lot more intensive.
- [00:09:09.620]And so that's sort of point number one that I would make, is that we can turn to
- [00:09:14.619]the pre-Civil War free states to see a sort of rehearsal around race and rights,
- [00:09:19.730]because these are post-slavery societies, that we're then going to see
- [00:09:22.820]on a bigger national scale after the Civil War.
- [00:09:25.180]So that's point number one. Now, what are civil rights?
- [00:09:27.953]I would just start by saying, and this helps us understand
- [00:09:33.241]the 13th, 14th, and 15th Amendment
- [00:09:36.000]as well, Americans in the 19th century talked about civil rights a little bit differently
- [00:09:42.220]from how they do now.
- [00:09:43.680]So nowadays, when we say civil rights, or we refer to the civil rights movement, we
- [00:09:50.040]often think about people
- [00:09:52.480]pushing for racial equality in public education.
- [00:09:56.220]If you think about Brown versus Board of Education, or you think about lunch counter
- [00:10:00.720]sit-ins and public accommodations, right, like lunch counters, buses, trains, and things
- [00:10:06.240]like that, and you also think about the right to vote is included in our contemporary
- [00:10:10.860]understanding of civil rights, right, that pushing for the right to vote, and what ends
- [00:10:14.440]up being the 1965 Voting Rights Act, continuing struggles around the right to vote.
- [00:10:19.960]In the 19th century, people had a slightly different
- [00:10:22.660]vocabulary for talking about these issues.
- [00:10:25.000]And so when they talked about civil rights, they usually weren't referring to the right
- [00:10:30.680]to vote, or the right to hold office, or the right to be on a jury.
- [00:10:34.780]Civil rights were a set of rights associated largely with ownership of property and the
- [00:10:41.880]ability to defend that ownership in court, and also personal liberty.
- [00:10:46.140]So the right to move freely from place to place, to own property,
- [00:10:50.795]and then to be able to go to court
- [00:10:52.520]and testify in court to defend your, basically to enter into contracts
- [00:10:59.499]and defend your contracts. And so those were sort of civil rights.
- [00:11:04.240]And then political rights, what people then at the time called political rights, were
- [00:11:10.060]the rights to vote and hold office and serve on juries.
- [00:11:13.160]And so when you get to, this is, so when we're talking about struggles over civil rights
- [00:11:17.700]in the 19th century, if you want to use the terminology of the time, we're going to be
- [00:11:20.880]talking about a certain set of things that are
- [00:11:22.380]fundamental rights, very basic rights that exclude these more political rights.
- [00:11:27.320]People were debating both civil rights and political rights in the 19th century.
- [00:11:31.660]But one of the reasons that you see a distinction, for example, between the
- [00:11:36.090]14th Amendment, which is about civil rights, and the 15th Amendment,
- [00:11:39.400]which is about the right to vote, is because it was very common
- [00:11:42.294]for people at the time to consider those as two separate genres of rights.
- [00:11:46.140]And as it turned out, during Reconstruction, Congress, passing these amendments, dealt
- [00:11:51.351]with those two rights, civil rights and political rights in two separate constitutional amendments.
- [00:11:57.940]So can you talk a little bit about the Northwest a little bit more,
- [00:12:03.982]particularly Illinois, Ohio?
- [00:12:06.060]You start your terrific book there, and it in many ways is
- [00:12:11.525]an unexpected place to begin this conversation.
- [00:12:15.040]But as you just said, this rehearsal, this question is in front of these societies in
- [00:12:22.100]the Northwest where slavery was barred, but states were passing Black laws,
- [00:12:29.825]laws that racialized a population.
- [00:12:34.100]And so what authority, could you help us understand
- [00:12:37.760]what authority did states have to pass laws like this?
- [00:12:41.800]And how did that come about in Illinois and Ohio and other, Iowa as well?
- [00:12:46.860]Yeah. So one of the reasons I ended up, I found the Midwest, and especially the
- [00:12:51.960]states that come out of the Northwest Ordinance, really interesting because
- [00:12:59.160]the Northwest Ordinance said there could be no slavery in the Northwest Territory.
- [00:13:06.920]Now, slavery was already practiced there.
- [00:13:09.780]So there was a bit of a struggle, particularly in Illinois, about how long
- [00:13:13.360]is it going to go on and in what form?
- [00:13:15.200]But in the main, what happens is that especially the lower, more southern
- [00:13:21.820]tier of Midwest states, so Ohio, Illinois, and Indiana, all border on the
- [00:13:26.580]Ohio River, and on the other side of the Ohio River are slave states.
- [00:13:29.970]They're not going to have human bondage, for the most part, with a little asterisk for Illinois.
- [00:13:37.760]But the state legislatures, from the beginning, and even from the period
- [00:13:44.620]before statehood, they passed laws that explicitly discriminate against Black people.
- [00:13:51.680]And these laws are, we could call them the Black laws.
- [00:13:56.320]That's what they were called at the time.
- [00:13:58.580]These laws created a lot of, they were a lot of discriminatory measures that cast African
- [00:14:08.320]Americans as outsiders.
- [00:14:10.940]They made life difficult for African Americans. They made them vulnerable
- [00:14:15.191]to white violence and excluded them from a variety of different things.
- [00:14:19.640]So let me just describe some of these Black laws.
- [00:14:22.324]These laws in, again, Illinois, Indiana, and Ohio said that if you were African American
- [00:14:28.400]and you moved into the state, you had to register your presence with local officials.
- [00:14:33.800]So this would be like, you had to go to the court clerk and show free papers.
- [00:14:38.020]So you had to demonstrate that you were not an escaping slave,
- [00:14:41.363]but that you were legitimately free.
- [00:14:42.900]You had to register, which meant that you had to pay a fee.
- [00:14:46.860]So you had to have a little bit of money.
- [00:14:48.875]You sometimes had to have...
- [00:14:51.200]Landowners kind of put up a bond for your good behavior, which meant that you wouldn't
- [00:14:57.480]become dependent on public resources.
- [00:14:59.380]So you had to do all these things to register. At least that was the law.
- [00:15:02.630]The law was not always enforced, but that was the law.
- [00:15:05.353]You were prohibited from testifying in court cases involving white people.
- [00:15:09.580]So you did not have the same rights in court, even in civil court, that white people had.
- [00:15:14.520]When public education got underway in these states, by state statute,
- [00:15:21.260]the state statute said that the public education was for white students only.
- [00:15:26.080]So it was like the taxpayer-funded education for white students.
- [00:15:29.600]And then finally, that Black men could not vote.
- [00:15:32.540]So often in state constitutions, they would say voting rights for white men only,
- [00:15:36.680]white male citizens only, or men.
- [00:15:38.500]So there, across education, voting, and these kind of basic civil rights,
- [00:15:45.480]the right to settle in a community, the right to be there, the right to work there,
- [00:15:49.533]African Americans faced these explicit racially discriminatory laws.
- [00:15:55.760]And why did these states pass these laws?
- [00:15:59.020]I mean, there are a variety of ways of explaining this.
- [00:16:02.560]I mean, we could just sort of say, well, they were really racist.
- [00:16:05.242]The state legislators who supported these laws were really racist,
- [00:16:07.940]and that is part of the picture.
- [00:16:10.720]I mean, more specifically than that,
- [00:16:12.780]they were trying to discourage Black migration into the states.
- [00:16:16.060]So that's why these laws were more prominent and went on for longer,
- [00:16:20.840]in these states that face the Ohio River,
- [00:16:22.880]than they did in Wisconsin and Michigan,
- [00:16:26.600]because the state legislatures in these states,
- [00:16:29.840]majorities, right, worried that African Americans would be
- [00:16:33.950]migrating from the slave states in just south of the Ohio River,
- [00:16:37.420]from places like Kentucky, Virginia, also Missouri,
- [00:16:40.520]into these states, and they really feared Black migration.
- [00:16:43.740]They envisioned their communities as communities for white people only.
- [00:16:49.870]They worried that Black people would be poor and dependent on public resources,
- [00:16:54.000]and so they put up these barriers that were designed to
- [00:16:56.680]really discourage Black migration.
- [00:16:58.313]Let me say two more things about that.
- [00:17:00.140]So number one, those laws were not unopposed,
- [00:17:02.820]and so, one of the things I write about is the struggle to get those laws repealed, right?
- [00:17:06.570]So first of all, Black residents of those states,
- [00:17:09.020]whenever possible, in a lot of really interesting and creative ways,
- [00:17:12.740]were mobilized to talk about why those laws were wrong,
- [00:17:15.860]why they should be repealed,
- [00:17:17.260]and over time, some white people began to support repeal of those laws, too.
- [00:17:21.280]So when I talk about state legislatures passing those kind of measures,
- [00:17:25.102]I want to make sure that you understand that there was also a fair amount
- [00:17:28.392]of opposition to those measures,
- [00:17:30.020]and over time, white opposition became more widespread.
- [00:17:33.540]And then the second thing, just on the question of the Constitution,
- [00:17:36.160]these laws were considered constitutional under the United States Constitution.
- [00:17:40.240]Generally speaking, they were considered constitutional. Why?
- [00:17:44.180]Because the original Constitution, as it was established in 1787,
- [00:17:49.880]gave a huge amount of power to state government.
- [00:17:54.060]So you're familiar with federalism.
- [00:17:55.740]You are familiar with the idea that in our system of government,
- [00:17:59.320]power is distributed across federal, state, and local governments, right?
- [00:18:05.020]And one of the biggest questions in United States history, in a way,
- [00:18:07.840]has been which level of government wields power over which kinds of issues, right?
- [00:18:16.960]And so with questions of individual rights,
- [00:18:20.780]these questions were left in the original constitution
- [00:18:24.180]very much up to state and local governments.
- [00:18:27.120]Sometimes people say, well, what about the Bill of Rights?
- [00:18:30.000]I thought that you have all these rights in the Bill of Rights that say what your basic rights are.
- [00:18:34.829]Once again, those rights that are enumerated in the Bill of Rights
- [00:18:39.220]were understood to be rights that were protected
- [00:18:41.580]against the federal government interfering with them,
- [00:18:44.360]but not against state governments.
- [00:18:46.380]So could states legalize slavery? Yes.
- [00:18:50.340]Under the Constitution.
- [00:18:51.560]Could states decide that only white men could vote?
- [00:18:54.860]Yes, they could.
- [00:18:56.220]Could states decide that married women had to give up their property
- [00:18:59.640]when they married?
- [00:19:00.980]Yes, they could. And they certainly did.
- [00:19:02.937]And so all of these questions about individual rights,
- [00:19:06.060]the vast majority of questions about individual rights, were dealt with at the
- [00:19:09.310]state and local level. And states could do an enormous number of things
- [00:19:12.840]that were unfair, unjust, discriminatory,
- [00:19:15.440]things we would never approve of today
- [00:19:17.500]without any kind of oversight by the federal government
- [00:19:20.880]because that's how the original constitution was set up.
- [00:19:24.850]Yeah, just following up on that a little bit,
- [00:19:27.840]Professor Masur, about the Privileges and Immunities Clause
- [00:19:31.140]and you write about this in some detail,
- [00:19:34.340]the states with police power, essentially,
- [00:19:37.600]the authority to regulate its population,
- [00:19:41.920]building these laws, these Black laws,
- [00:19:44.140]on top of what had been poor laws,
- [00:19:47.200]laws about regulating a population
- [00:19:50.129]in the community, right?
- [00:19:52.760]And then racializing that population
- [00:19:56.280]through the Black laws,
- [00:19:57.840]and doing so under the state police power authority.
- [00:20:01.860]But it's a direct, you know,
- [00:20:03.540]to bar free Black New Yorkers
- [00:20:06.980]from entering the state of Illinois
- [00:20:09.720]is obviously a potential and real violation
- [00:20:13.760]of the Privileges and Immunities Clause. So can you talk a little bit about that,
- [00:20:17.270]just very briefly, the state authority versus
- [00:20:20.700]the Privileges and Immunities Clause
- [00:20:22.640]in the, before the Civil War?
- [00:20:24.360]Yeah, so, right.
- [00:20:26.080]So one question is,
- [00:20:27.820]what are the laws that states apply
- [00:20:32.400]to people in their own state, right?
- [00:20:34.560]Like, because, and that's how jurisdiction works, right?
- [00:20:37.480]Like you have to follow the laws in the jurisdiction that you're in,
- [00:20:41.620]but then there are questions about, you know,
- [00:20:44.700]well, what if people are traveling, right? What if people are crossing jurisdictions?
- [00:20:49.034]What, you know, if,
- [00:20:50.680]if somebody has certain kinds of rights in one jurisdiction
- [00:20:53.640]and they move to another jurisdiction,
- [00:20:55.620]can they still exercise those rights?
- [00:20:59.700]And this is an age old problem in law.
- [00:21:03.860]I mean, so I remember reading about an example of,
- [00:21:07.740]for example, there are society, this came up in England
- [00:21:10.980]and like early modern England or something,
- [00:21:12.852]you know, there are societies where polygamy is legal.
- [00:21:15.520]And then what if a person who,
- [00:21:19.700]especially like, let's say, a diplomat who comes into England
- [00:21:22.760]where polygamy is illegal with multiple wives,
- [00:21:26.220]can England tell him
- [00:21:28.800]that he cannot have his multiple wives in that place?
- [00:21:31.420]Or will England say, well, you know, we will allow you to observe the customs
- [00:21:35.420]and the laws of your country while you're here
- [00:21:37.608]out of courtesy, out of respect, whatever.
- [00:21:39.680]And so, these kinds of questions are not at all unique to the United States
- [00:21:43.299]and they come up in international law some fair amount.
- [00:21:47.140]But in the U.S. context, because of federalism,
- [00:21:50.140]you have states with a lot, a lot of control
- [00:21:53.860]over the individual rights of people living within the states.
- [00:21:56.905]But then you have the question of like, well, what happens when people travel?
- [00:21:59.900]And it comes up very pointedly
- [00:22:01.580]with African Americans traveling.
- [00:22:03.260]So to give the example,
- [00:22:04.500]so that Professor Thomas just sort of referenced,
- [00:22:09.240]by the 1820s, Massachusetts and New York
- [00:22:15.200]both considered free Black people
- [00:22:18.340]who lived in those states, citizens of their states.
- [00:22:21.180]So, it was not difficult for the governments of Massachusetts and New York
- [00:22:26.180]to acknowledge that Black people
- [00:22:28.140]who lived in Massachusetts were citizens of the state
- [00:22:30.060]and same with New York. So on the one hand,
- [00:22:35.040]we have all these states sort of acting independently and deciding, right?
- [00:22:38.000]Like the authorities in Ohio would never have acknowledged
- [00:22:40.720]that Black Ohioans were citizens of Ohio, certainly not in Illinois.
- [00:22:44.501]But what happens when people wanna travel?
- [00:22:48.000]So there is this clause
- [00:22:49.100]called the Privileges and Immunities Clause in the original Constitution.
- [00:22:51.860]It's in article four, section two. And article four is the part
- [00:22:55.380]of the original Constitution that deals with interstate questions.
- [00:22:59.440]And it's where the framers of the Constitution
- [00:23:01.940]were trying to kind of predict
- [00:23:04.160]and deal with some questions that might come up
- [00:23:07.120]that could cause conflicts amongst states
- [00:23:09.580]or conflicts for people who are traveling.
- [00:23:12.100]And sometimes these questions don't have to do with race.
- [00:23:14.760]They have to do with financial questions.
- [00:23:16.810]Like if I'm a citizen of Ohio,
- [00:23:21.620]can I establish a bank account in Illinois and things like that?
- [00:23:24.722]And so in the case of free African Americans,
- [00:23:27.320]let's say that you have a Black citizen of Massachusetts
- [00:23:32.040]who wants to move to Missouri.
- [00:23:35.200]And this comes up in reality in the early 1820s.
- [00:23:38.920]And Missouri has a law that says,
- [00:23:41.960]or Missouri wants to have a law that says, "we do not permit African Americans
- [00:23:45.960]to migrate into our state."
- [00:23:47.640]And it opens the door
- [00:23:49.660]for a constitutional argument to be made
- [00:23:52.180]at the federal level
- [00:23:53.660]that Missouri cannot bar African Americans
- [00:23:57.700]who are citizens from entering the state
- [00:24:00.680]because it's a violation of the Privileges and Immunities Clause,
- [00:24:03.560]which says the citizens of each state
- [00:24:05.380]are entitled to the privileges and immunities
- [00:24:07.160]of the several states.
- [00:24:08.600]So the clause itself, if you read it,
- [00:24:10.440]is kind of ambiguous.
- [00:24:11.650]And people saw it as ambiguous at the time.
- [00:24:14.060]But the people who wanted to make arguments for African Americans,
- [00:24:17.420]having more rights and for the injustice of Black laws
- [00:24:21.220]would often turn to, especially in issues of interstate travel,
- [00:24:25.360]would turn to the Privileges and Immunities Clause
- [00:24:27.770]of the original Constitution to say,
- [00:24:29.500]you cannot bar African Americans
- [00:24:32.060]from traveling into other states because particularly those
- [00:24:35.080]who are considered citizens of their states
- [00:24:36.680]because they're citizens, right?
- [00:24:38.460]So they have to be allowed to travel freely among the different states.
- [00:24:41.936]So this is a question that activists
- [00:24:44.160]of various kinds put on the table repeatedly
- [00:24:47.020]from the 1820s into the 1860s.
- [00:24:50.260]And that's one of the reasons that this language of privileges or immunities
- [00:24:55.380]is in the 14th Amendment.
- [00:24:57.108]So it really seems like the rights of free Blacks
- [00:25:02.460]remained unclear throughout this entire period
- [00:25:04.960]prior to the Civil War.
- [00:25:07.040]You actually write about this in your book
- [00:25:09.600]and you talk about the various Negro Seamens Acts
- [00:25:12.600]throughout the Southern states.
- [00:25:14.340]So could a Black person actually obtain
- [00:25:16.500]a passport and were there laws that challenged this or not?
- [00:25:23.500]So again, I mean, I would go back to just really thinking
- [00:25:30.400]about how independently different states
- [00:25:33.880]were able to act in this period.
- [00:25:36.120]And fast forward, like this is one of the reasons
- [00:25:39.680]why the Reconstruction aAmendments
- [00:25:43.020]and Reconstruction federal statutes are so important.
- [00:25:46.528]But before we get to that, chronologically,
- [00:25:48.920]so South Carolina, you referred to the Negro Seamen Acts,
- [00:25:52.240]South Carolina began that sort of trend
- [00:25:55.480]of Southern states passing laws
- [00:25:58.020]that really cracked down on Black sailors.
- [00:26:01.040]And so part of, you have to sort of imagine a world
- [00:26:04.260]in which there's a huge amount of commerce
- [00:26:06.420]on oceans and rivers too,
- [00:26:09.660]and a lot of jobs for men as sailors.
- [00:26:12.940]And there are a lot of free Black Northerners
- [00:26:15.460]who work as sailors on what's
- [00:26:17.820]called the coast-wise trade or all the commerce that's going up and down
- [00:26:22.667]the Atlantic coast of the United States. There are a lot of Black men who are from places like
- [00:26:27.850]New York and Boston and Philadelphia who are working on those ships.
- [00:26:30.869]And in addition to that, there are a lot of
- [00:26:32.975]Black men who work on British sailing ships. There are a lot of international sailors who are
- [00:26:38.570]not Black Americans, but are from the Caribbean, from Great Britain, from Africa, who are putting
- [00:26:44.410]in, their ships are coming into Southern ports. And a lot of white Southerners are very, very
- [00:26:49.750]afraid that free Black men coming into their ports are going to be a destabilizing influence
- [00:26:58.590]on slavery. That Black men will come in and they, you know, they are free to,
- [00:27:03.507]if they're free to walk around the city, they may be talking about their lives,
- [00:27:07.763]they may be talking about freedom, they may be
- [00:27:09.452]bringing abolitionist newspapers and other kinds of abolitionist materials into these
- [00:27:14.290]Southern ports, and it's a cause for really big concern for white Southerners.
- [00:27:18.386]And so beginning with South Carolina, in what year was it? 1820, I'm blanking.
- [00:27:27.659]1822? Yeah. So beginning with South Carolina,
- [00:27:32.481]these Southern states start to pass laws that are explicitly targeting free Black sailors,
- [00:27:36.628]not just from the North, but for anywhere. And they make the laws say that when
- [00:27:40.899]you come into a port, if you are a black sailor, a sheriff is going to come onto your ship
- [00:27:45.076]and escort you to the jail, and you're going to spend the time
- [00:27:49.030]that you, your ship is in port in jail. And then when the ship is ready to sail out, the
- [00:27:54.810]ship captain can come and pick you up from jail and escort you back to the ship. And
- [00:28:00.810]the ship captain, by the way, also has to pay for the cost of your board, like your
- [00:28:05.890]food while you were there. So it's an expense to the captains. The captains also didn't
- [00:28:10.060]like it because it deprived them of labor while they were in port. So they would often have
- [00:28:14.350]the needs of like unloading and loading ships and their sailors were incarcerated. So they
- [00:28:18.490]couldn't, they had to hire other people to do that. Other of these Negro Seamen Acts
- [00:28:24.076]instead of making people spend time in prison, would make them
- [00:28:27.430]quarantine on their ships and not come ashore.
- [00:28:29.620]But whatever the case, these were all laws that expressed the fear of white
- [00:28:35.370]Southerners that Black sailors were dangerous to a slaveholding society.
- [00:28:39.710]And once again, most people thought these laws were constitutional under the U.S.
- [00:28:44.330]Constitution because states could kind of do what they wanted.
- [00:28:47.316]On the other hand, some people challenged those laws by saying
- [00:28:52.332]that when they interfered with
- [00:28:53.930]Black sailors that were not from the United States, that they, A: they interfered with
- [00:28:58.930]treaty relationships that Congress was supposed to be in charge of,
- [00:29:01.190]so it was supposed to be a federal level,
- [00:29:03.325]or, B: they interfered with the Interstate Commerce Clause, again, potentially a
- [00:29:08.235]federal issue, or C: that they interfered with Black sailors' rights under the privileges and
- [00:29:14.310]immunities clause, and so people did try to challenge these laws at the federal level and
- [00:29:18.930]try to get somebody in the federal government, whether it would be Congress
- [00:29:22.320]or the federal courts, to say that these laws were unconstitutional,
- [00:29:26.650]but they never succeeded in doing so
- [00:29:29.630]up until the Civil War happened, right, and everything changed.
- [00:29:34.170]Yeah. Can I follow up on that just a little bit?
- [00:29:38.700]Yeah, so you write about the various attorney
- [00:29:44.290]generals' opinions that are put forward to various administrations or at the request of
- [00:29:53.990]various administrative agencies throughout this whole period, culminating 1862, I think,
- [00:30:01.550]with, is it Bates's opinion about citizenship and Black rights
- [00:30:10.908]and the constitutional question, that we've just been discussing.
- [00:30:16.009]And so, I guess I wonder if you could help us understand that progression.
- [00:30:20.899]I mean, at one point, you know, Roger Taney writes one of these opinions.
- [00:30:26.350]There's at least three, I think you describe in your book, in which this question comes
- [00:30:34.430]before the administration and the Attorney General, whoever it is,
- [00:30:38.898]Roger B. Taney or others, I think, is it William Wirt who also supplies one opinion, yeah,
- [00:30:50.242]that they are being, how do these questions come before the administration?
- [00:30:54.670]I mean, I think one instance you mentioned a ship captain is going to get a commission.
- [00:31:01.190]Can he be commissioned?
- [00:31:02.470]I mean, you asked about passports, can a Black, I mean, this is an early,
- [00:31:06.690]before passports really, but there are other kinds of identifications, right,
- [00:31:11.770]that have federal citizenship meaning.
- [00:31:15.230]And so these come before the administrations.
- [00:31:18.950]I just wonder if you could talk a little bit about those opinions, how they come before
- [00:31:23.470]each of these administrations.
- [00:31:25.350]Well, yeah, and I didn't really answer the question about passports,
- [00:31:29.252]but so that's slightly different.
- [00:31:31.590]I mean, the State Department is a part of the U.S. Government that issues passports.
- [00:31:36.210]But the history of passports was also changing in this time period.
- [00:31:39.610]So there's a lot of really good work on this, but you know, for example, you didn't
- [00:31:44.210]need, you didn't actually need a passport to go to Great Britain, but you did need one
- [00:31:47.610]to go to the European continent.
- [00:31:49.450]So and then passports were also not associated with citizenship at that time
- [00:31:53.590]in the way that they are now.
- [00:31:55.070]Like in other words, you could get a passport if you were not a citizen.
- [00:31:58.190]And so passports were just like in flux in this time period as well.
- [00:32:02.450]But it was the case that and so some African Americans
- [00:32:06.707]had been able to get passports before the 1850s.
- [00:32:11.270]But then by the end of the 1840s and early 1850s.
- [00:32:14.190]The State Department's of particular democratic administrations were kind of
- [00:32:19.810]cracking down on that and using passports to make a statement
- [00:32:22.530]about the non-citizenship of African Americans.
- [00:32:25.690]And so you have passports sort of become a point of conflict because the citizenship
- [00:32:33.330]of Black Americans is increasingly becoming a kind of pointed area of political conflict.
- [00:32:38.890]So it's, not so one of the things, just to fast forward, so the Lincoln administration
- [00:32:44.170]I mean, I argue, you know, that the link it actually makes a very big difference when
- [00:32:48.970]Lincoln gets elected in 1860 and comes into office in 1861.
- [00:32:54.030]He's... Lincoln is very concerned with the Constitution
- [00:33:00.210]and following the U.S. Constitution and that's
- [00:33:02.910]one of the reasons that he's like frustratingly slow on questions of emancipation, but on
- [00:33:07.830]the other hand within the bounds of the Constitution, you have these
- [00:33:11.560]administrative agencies that are part of the executive branch. Right.
- [00:33:14.830]So the State Department, the Attorney General's office,
- [00:33:18.451]and other areas of the administrative
- [00:33:21.150]what administrative state, we would now call the administrative agencies.
- [00:33:25.490]So those those areas have a lot of discretion.
- [00:33:28.610]So under the Lincoln administration, the State Department starts
- [00:33:31.510]issuing passports to African Americans.
- [00:33:33.750]The attorney general issues this statement on citizenship, saying that free Black people
- [00:33:37.970]are indeed citizens of the United States and there's no other way to see it.
- [00:33:41.770]And they recognize Haiti diplomatically
- [00:33:44.130]for the first time, they have Haitian diplomats come to Washington and have a state dinner
- [00:33:50.410]with them when that had been a totally like racialized question before,
- [00:33:54.118]where no U.S. administration
- [00:33:55.950]since the early 19th century had recognized Haitian independence in part because they
- [00:33:59.090]didn't want to recognize the independence and the kind of stature of a Black republic.
- [00:34:03.760]So these things really do a lot shifts in the Lincoln administration in some of these
- [00:34:09.670]administrative agencies that aren't as visible to many historians as something
- [00:34:14.110]like the Emancipation Proclamation would be.
- [00:34:17.890]That didn't really answer the question though about attorney generals, do you want me to
- [00:34:21.570]go back to that or no?
- [00:34:22.570]No, that's all right.
- [00:34:23.570]I mean, I just think you really did address it because these administrative questions
- [00:34:28.450]are coming into the executive branch, right?
- [00:34:31.570]Right.
- [00:34:32.520]Can the Treasury Department issue a patent to a Black inventor?
- [00:34:39.320]What does doing that mean with regard to citizenship?
- [00:34:43.595]There are these very important questions about passports and patenting
- [00:34:48.367]that raise these questions of citizenship?
- [00:34:50.770]And I think that's the point I was hoping and you did kind of get to.
- [00:34:55.710]So, let's talk about the 14th Amendment, right?
- [00:35:01.370]I mean, in the passage of the 14th Amendment, since you've gotten us right up
- [00:35:07.090]to the Lincoln administration, one thing that struck me reading
- [00:35:14.070]your book, again, is just the continued Black law issue.
- [00:35:22.890]I mean, Oregon in 1858/59, submitting a constitution that excludes
- [00:35:29.109]Blacks from the state. So, can you talk about the framing of the 14th Amendment,
- [00:35:37.176]and what the 14th Amendment really is aiming to do and why it's so significant?
- [00:35:44.050]Yeah, and thanks for bringing Oregon up.
- [00:35:48.298]So I think, you know, one of the points that I was interested in making is the conventional
- [00:35:58.430]narrative and, you know, probably for some for good reasons,
- [00:36:02.679]that the conventional narrative
- [00:36:04.570]is that the Civil War ends in the spring of 1865, when Congress was out of session.
- [00:36:14.396]And President Andrew Johnson tries to take control of the process of bringing the
- [00:36:20.730]Southern states, the Confederate, former Confederate states back into the Union.
- [00:36:24.130]And over the course of the summer and fall of 1865, while these some white Southerners
- [00:36:34.030]are trying to kind of bring together governments that will be composed of more
- [00:36:38.642]white Southern Unionists than Confederates, trying to establish their states on a new
- [00:36:43.650]footing so they can be readmitted to the Union under Johnson's policy.
- [00:36:47.590]While all of that's happening, white Southerners are unleashing
- [00:36:52.450]a huge amount of violence against
- [00:36:54.550]Black Southerners, kind of retaliatory violence.
- [00:36:57.350]They don't want them to be, they don't want Black Southerners to be free.
- [00:37:00.570]They are doing things to keep them from moving from place to place so that they can
- [00:37:06.456]keep a labor force in place so they can continue their agriculture.
- [00:37:10.310]There are Northern reporters, like news reporters,
- [00:37:13.990]traveling in the South and reporting back on this violence and among white Southerners,
- [00:37:19.770]a certain amount of intransigence and an unwillingness to kind of concede defeat,
- [00:37:25.690]even though the war is ostensibly over.
- [00:37:28.150]And then you have, the governments that Johnson had established or
- [00:37:33.840]wanted to see established begin to meet these state governments.
- [00:37:36.891]And they pass what are called Black Codes or Black Laws that are casting Black people as,
- [00:37:43.820]you know, almost doing everything but re-enslaving them, creating these extremely
- [00:37:48.510]exploitative labor laws, hugely discriminatory legal codes.
- [00:37:53.490]And so, the conventional narrative is that Congress comes back into session in
- [00:37:57.140]December of 1865, and they take a look at all of this violence, all these unrepentant white Southerners,
- [00:38:02.770]all of the beginnings of these Black Codes in Mississippi and South Carolina.
- [00:38:08.350]And they say, we are not doing this.
- [00:38:10.950]This will not do.
- [00:38:12.490]And so they begin the process.
- [00:38:14.646]of creating what's going to become the 14th Amendment
- [00:38:17.170]and also the first federal civil rights statute, the Civil Rights Act of 1866.
- [00:38:21.590]And they renew the Freedmen's Bureau.
- [00:38:23.710]And their goal is to exert federal power over these states
- [00:38:28.870]because they refuse to allow white Southerners to have free reign
- [00:38:33.970]in the wake of the war in which they've just been defeated.
- [00:38:36.290]And what I'm trying to talk about is how, yes, that's not not true.
- [00:38:43.250]The Republicans in Congress in that era were not starting from scratch
- [00:38:48.590]when they were trying to figure out what to do to create these federal measures
- [00:38:52.010]because they knew about this pre-Civil War civil rights struggle in the North.
- [00:38:56.450]They had participated in it.
- [00:38:58.050]They had been involved in it in a variety of different ways.
- [00:39:00.750]And so they knew about things like the Black laws of Ohio, Indiana, and Illinois
- [00:39:04.910]and the struggle to repeal them.
- [00:39:06.670]They knew about challenges in favor of Black sailors' civil rights
- [00:39:10.930]under the Privileges and Immunities Clause of the Constitution.
- [00:39:13.660]They knew what Oregon was doing, and they had tried to stop
- [00:39:16.446]the admission of Oregon with its anti-Black measures.
- [00:39:19.950]And so, they were not only responding to what was going on in that moment
- [00:39:24.570]that had to do with the defeat of the Confederacy
- [00:39:26.530]and questions associated with the South.
- [00:39:28.250]They were also bringing forward all of the knowledge that they had
- [00:39:31.670]from these previous civil rights struggles
- [00:39:33.620]and all of the questions that were on the table already.
- [00:39:35.730]And that's what they brought to bear when they had this kind of moment
- [00:39:39.490]in 1866 of figuring out what kinds of federal policies
- [00:39:44.140]to do that would kind of solve problems that they were seeing emerging
- [00:39:48.630]in the post-Civil War South, but also deal with these questions
- [00:39:51.890]that had been on the table for a really long time of like,
- [00:39:53.990]could a state like Illinois continue to have these anti-Black measures?
- [00:39:57.410]Was that okay? Could Oregon continue to have that? Was that okay?
- [00:39:59.930]And the answer was no, right?
- [00:40:01.810]And so the Civil Rights Act of 1866 and the 14th Amendment
- [00:40:05.410]did not only apply to the Southern states, they applied nationally.
- [00:40:08.970]And they essentially implicitly repealed or de-legitimated
- [00:40:14.433]those anti-Black laws, not only in the South,
- [00:40:16.590]but in the North and West also.
- [00:40:18.290]So we have one more question, maybe to briefly address,
- [00:40:23.050]and then we're going to open it up to questions from the class
- [00:40:27.530]and from online, but Sharlene?
- [00:40:29.410]Yes, so the 14th Amendment has always been very instrumental,
- [00:40:34.590]even with the Civil Rights Movement, right?
- [00:40:36.750]And so, why is it so important for us to understand
- [00:40:41.490]the original history and the meaning of the 14th Amendment today?
- [00:40:45.470]And students have read the brief that you and your colleagues submitted
- [00:40:52.930]with the Students for a Fair Admission in Harvard, so thank you.
- [00:40:57.290]Yeah, I mean, thanks for that.
- [00:40:59.510]Thanks for assigning that in for that question.
- [00:41:01.610]I mean, one reason, you know, let's just,
- [00:41:03.990]one reason why the original meaning of the 14th Amendment
- [00:41:08.730]is so important to us now is because so many,
- [00:41:12.990]federal court judges and justices on the Supreme Court
- [00:41:20.230]want to talk about original meaning
- [00:41:24.450]as an understanding original meaning
- [00:41:26.750]as a mode of interpreting the Constitution
- [00:41:29.530]now for our own time.
- [00:41:31.210]So first, I just want to kind of be clear
- [00:41:33.950]that it's not a foregone conclusion
- [00:41:36.390]that judges need to look at original meaning in order,
- [00:41:40.030]or even like privilege original meaning in order
- [00:41:43.391]to make decisions, right?
- [00:41:44.590]That's a conscious choice that some judges are making
- [00:41:47.110]that other judges actually really reject.
- [00:41:49.080]And when you take it to original meaning,
- [00:41:52.070]you begin to talk about history, right? And you begin to talk about,
- [00:41:54.530]well, what were they talking about in the period
- [00:41:57.950]when whatever measure of the Constitution
- [00:41:59.710]you're talking about, it was adopted.
- [00:42:01.050]So when it has to do with the 14th Amendment,
- [00:42:02.970]you should be talking about the 1860s.
- [00:42:05.190]You shouldn't be talking about the 1780s or 1790s, right?
- [00:42:08.470]And the 14th Amendment has become so important in our lives
- [00:42:13.790]because it's not only the foundation for decisions
- [00:42:18.870]like Brown versus Board of Education,
- [00:42:20.630]which is a desegregation decision,
- [00:42:22.970]but also central to decisions having to do
- [00:42:26.610]with the rights of women,
- [00:42:29.430]with the rights of sexual minorities.
- [00:42:31.330]And so, even though the central question on the table
- [00:42:36.090]in the 1860s had to do with the process of abolishing slavery
- [00:42:39.890]and dealing with questions of race,
- [00:42:41.590]because of the way our country
- [00:42:43.770]works, questions associated with gender and sexuality
- [00:42:48.030]have become folded into the 14th Amendment,
- [00:42:51.330]in a way because there's not a better place for them to go in the Constitution.
- [00:42:55.110]And so that's one of the reasons the 14th Amendment
- [00:42:57.710]is so important, because it's important to Obergefell,
- [00:42:59.770]because it's important to Dobbs, Roe v. Wade, birth control decisions.
- [00:43:03.550]All of these kind of decisions around sexuality
- [00:43:07.410]and reproduction are 14th Amendment cases as well.
- [00:43:12.320]So, in the brief, I and my frequent co-author, Greg Downs,
- [00:43:18.190]had the opportunity to work with some really excellent lawyers
- [00:43:21.950]and do historical research to show that the claim
- [00:43:27.370]that the people who approved of the 14th Amendment
- [00:43:31.510]in 1866 or around that time,
- [00:43:36.170]that the claim that those people would have required
- [00:43:39.210]colorblindness, that their vision was a vision
- [00:43:42.930]in which public entities could never recognize race,
- [00:43:47.330]even if that recognition was designed
- [00:43:49.510]to ameliorate oppression, that that claim is wrong, right?
- [00:43:54.550]That that claim is historically inaccurate.
- [00:43:56.778]And so that's what we demonstrated in the brief, I hope.
- [00:44:00.610]Okay, thank you.
- [00:44:03.490]So let's open it up to questions.
- [00:44:05.750]Questions from the class as well as from online.
- [00:44:13.710]We have an online question.
- [00:44:18.210]Okay, go ahead.
- [00:44:21.610]Do you want to read the?
- [00:44:25.310]Oh yeah, sure, absolutely.
- [00:44:26.450]Okay, this is from Louie.
- [00:44:29.530]After the 15th Amendment passes,
- [00:44:31.410]did the states that disobey
- [00:44:33.170]and prevented African-American men from voting get punished?
- [00:44:36.830]Or is it that the states could overpower
- [00:44:39.850]the federal or congressional laws?
- [00:44:43.690]That's a really good question.
- [00:44:44.870]And so one of the things that,
- [00:44:48.970]there's so much history to really know,
- [00:44:52.230]but so... After the 15th Amendment was ratified in 1870,
- [00:44:57.510]Congress passed a bunch of statutes
- [00:45:00.310]that were designed to enforce the 15th Amendment.
- [00:45:02.370]And there were new civil rights laws passed in 1870 and 1871
- [00:45:06.850]that kind of instructed the,
- [00:45:13.670]the states that they had to follow the 15th Amendment
- [00:45:16.390]and instructed the federal government
- [00:45:17.870]on how to enforce the 15th Amendment if states didn't.
- [00:45:21.190]And so, as you can probably imagine,
- [00:45:23.550]and there's really, you know,
- [00:45:25.710]really good books and stuff have been written on this.
- [00:45:28.390]You know, a lot of white Southerners
- [00:45:30.230]had no compunction about violating the 15th Amendment
- [00:45:32.690]and trying to prevent Black men from voting,
- [00:45:34.790]both using violence, using intimidation.
- [00:45:37.650]And for a time, the U.S. government tried to step in
- [00:45:41.350]and stop that from happening.
- [00:45:43.650]They put a lot of white supremacists on trial
- [00:45:46.850]in the early 1870s using the Justice Department.
- [00:45:49.970]They convicted a bunch of them.
- [00:45:52.050]It led to a real diminution of the Ku Klux Klan
- [00:45:55.310]for a limited amount of time
- [00:45:56.730]because some people were convicted
- [00:45:58.910]and other people were afraid of being brought to trial.
- [00:46:00.910]They put troops on the ground.
- [00:46:03.130]So sometimes they use the military
- [00:46:04.590]to try to enforce African-American men's right to vote
- [00:46:08.190]and other forms of civil rights.
- [00:46:09.870]But the reality, as the question suggested,
- [00:46:12.170]was that white supremacists
- [00:46:13.630]white Southerners continued in their opposition
- [00:46:16.210]to their violent opposition, among other things,
- [00:46:20.090]to Black men's enfranchisement.
- [00:46:22.110]And over time, political conditions also shifted
- [00:46:26.530]in the North to where the people
- [00:46:28.670]who would have otherwise wanted to continue
- [00:46:30.570]to support enforcement of Black men's civil rights
- [00:46:33.310]felt like they couldn't keep putting soldiers on the ground,
- [00:46:36.030]that it begins to look like we don't have a democracy, right?
- [00:46:39.790]If you constantly have to have military enforcement
- [00:46:42.050]of civil rights,
- [00:46:43.610]and Democrats, the party that didn't support
- [00:46:48.090]any kind of enforcement of reconstruction,
- [00:46:49.650]kind of have a resurgence in the late 1870s.
- [00:46:52.130]And so it's increasingly that the people,
- [00:46:56.310]the Northerners who would have wanted to continue
- [00:46:59.230]to try to enforce Black men's right to vote in the South
- [00:47:02.230]increasingly are not able to
- [00:47:04.790]or lose kind of the will to do it.
- [00:47:06.510]Meanwhile, we can't forget, right,
- [00:47:09.370]the agency of white Southerners
- [00:47:11.370]in making it very, very difficult
- [00:47:13.590]because they continue, continue, continue
- [00:47:15.790]to put up such a fight that, you know,
- [00:47:19.150]it means that the cost of trying to enforce
- [00:47:22.030]Black men's right to vote, for example,
- [00:47:24.230]is enormous for the government.
- [00:47:26.450]All right, let's take a look.
- [00:47:28.930]Yeah, well, and I would just quickly add
- [00:47:30.570]that the 14th Amendment provision
- [00:47:32.170]reducing punishing states in answer to the question
- [00:47:35.610]was never really brought to bear on Southern states
- [00:47:40.450]that restricted the vote of Black men.
- [00:47:43.570]So there was a potential for that in 1890
- [00:47:49.750]with another Enforcement Act,
- [00:47:51.090]but no, the answer, the question is excellent.
- [00:47:54.090]There was no, the states themselves were not,
- [00:47:57.910]saw no loss of representation
- [00:48:01.530]despite their disenfranchisement of Black voters.
- [00:48:04.950]Okay, other question back here?
- [00:48:08.670]Okay, others?
- [00:48:13.550]We're at our time, okay.
- [00:48:16.410]Okay. Okay, thank you.
- [00:48:19.630]Just one second, we'll close out.
- [00:48:23.610]Thank you everyone for coming today.
- [00:48:26.330]There's one more question in the Q&A.
- [00:48:29.530]Oh yeah, do you guys, we're gonna stay 'til 1:30.
- [00:48:32.670]So just hang tight for a few more moments.
- [00:48:34.970]We're gonna answer one more question
- [00:48:36.610]and then we'll just have a brief outro
- [00:48:38.250]before we close our webinar today.
- [00:48:40.890]So from the chat, this is from Kelly.
- [00:48:43.530]"Regarding your discussion of anti-Black laws
- [00:48:46.830]in Illinois, Indiana, and Ohio,
- [00:48:49.350]and their relationship to the border of slavery,
- [00:48:52.690]how do we explain the Black laws in Michigan and Iowa?"
- [00:48:56.710]So the, you know, it's an interesting question.
- [00:49:01.770]I mean, the Michigan ones,
- [00:49:04.150]so all of, before statehood, all of those territories,
- [00:49:08.030]so first of all, Iowa wasn't in the Northwest Ordinance,
- [00:49:10.270]but so all of those Northwest Territory,
- [00:49:13.510]territories before they were states
- [00:49:15.690]had these kind of Black laws.
- [00:49:17.530]Michigan comes into the Union as a state
- [00:49:20.210]later than Ohio, Illinois, and Indiana.
- [00:49:23.410]And interestingly, so there were Black laws in Michigan
- [00:49:25.910]as part of the territorial period.
- [00:49:27.790]And then when Michigan statehood happens,
- [00:49:30.110]and I think 1837, they drop the Black laws.
- [00:49:33.450]Now they continue Black men's disenfranchisement,
- [00:49:37.230]but they actually like leave the Black laws,
- [00:49:40.870]the kind of more civil oriented Black laws,
- [00:49:43.490]out of the new code of Michigan.
- [00:49:46.550]And it's interesting, there's a guy
- [00:49:50.470]who becomes a Republican politician,
- [00:49:52.090]a pretty powerful one from Michigan named Jacob Howard.
- [00:49:55.150]And there's evidence that early in his career,
- [00:49:58.910]Jacob Howard was part of writing the original legal code
- [00:50:02.370]for Michigan statehood.
- [00:50:03.470]And he might've been the person responsible
- [00:50:05.390]for just leaving them out.
- [00:50:06.770]Certainly by the 1850s and '60s,
- [00:50:08.830]he was the kind of Republican politician
- [00:50:10.690]who opposed that sort of thing.
- [00:50:13.470]So that's not to say that there's not racism
- [00:50:15.630]in Michigan, right?
- [00:50:16.850]But it's just to say that by statehood,
- [00:50:18.650]they don't have the kind of Black codes
- [00:50:20.390]that the other more Southern Midwestern states do.
- [00:50:24.190]With Iowa, they also come into the Union later.
- [00:50:27.090]They have a really big fight
- [00:50:28.450]over whether to have the Black code.
- [00:50:29.850]So there's a huge amount of opposition to it
- [00:50:31.750]because there are a lot of abolitionists in Iowa
- [00:50:33.950]who don't wanna have it,
- [00:50:35.250]but the people who want it prevail.
- [00:50:37.290]And I think, again, it's about fear of Black migration. Iowa
- [00:50:43.450]is just north of Missouri and Missouri is a slave state, and so they want to... And they
- [00:50:49.930]become a state also, and this is true of Oregon as well, at a slightly later period when this
- [00:50:56.430]discussion of Black citizenship is really ramped up. So it's very important to the
- [00:51:01.090]Democrats the Democratic Party at that time to like make a statement, an anti-Black statement,
- [00:51:05.350]and so I think you know that's where the Ohio one comes from. So I'm part of what I'm saying is that
- [00:51:10.950]the chronology of when a state became a state also matters for whether they adopt these Black
- [00:51:17.770]codes or not, but the primary fear or the primary kind of like desire in these laws is to discourage
- [00:51:24.470]African American migration into the state.
- [00:51:27.780]Thank you to our guest today Dr. Masur and our co-host
- [00:51:31.570]Drs. Thomas and Sinegal-DeCuir for this conversation. It's been an honor to have you here.
- [00:51:37.090]We're so grateful for your time and appreciate the way that your work
- [00:51:40.750]is laying the foundation for the questions that we're asking at the U.S. Law and Race Initiative.
- [00:51:45.050]I'd also like to thank our History 115 students, our audience on Zoom, and to the U.S. Law and
- [00:51:51.150]Race team for your support. You can learn more about the U.S. Law and Race Initiative at
- [00:51:56.030]uslawandrace.unl.edu. Additional information about our event series as well as YouTube videos
- [00:52:03.190]of our past events are posted at events.unl.edu/uslawandrace.
- [00:52:10.550]This event concludes our fall webinar series. A final thank you to all of our panelists,
- [00:52:16.610]hosts, and participants. Please join us in spring of 2024 for our next webinar series on U.S. Law
- [00:52:24.450]and Race hosted by Dr. Will Thomas and part of his course on American constitutionalism.
- [00:52:30.410]Thank you again and have a great rest of your day. See you next spring.
- [00:52:34.450]Thank you.
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- 14th amendment
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