When President Abraham Lincoln announced the impending passage of the Emancipation Proclamation in early 1863, the stakes of the Civil War shifted dramatically. A Union victory would mean no less than revolution in the South, where the “peculiar institution” of slavery had dominated economic, political and social life in the antebellum years.
In April 1865, as the war drew to a close, Lincoln shocked many by proposing limited suffrage for African Americans in the South. He was assassinated days later, however, and his successor Andrew Johnson would be the one to preside over the beginning of Reconstruction.
Did you know? In the years following Reconstruction, the South reestablished many of the provisions of the black codes in the form of the so-called “Jim Crow laws.” These remained firmly in place for almost a century, but were finally abolished with the passage of the Civil Rights Act of 1964.
The Fourteenth Amendment
The meaning attached to the Privileges or Immunities Clause was of course squarely before the Supreme Court in the Slaughter-House Cases. Since the first sentence of the Fourteenth Amendment makes everyone born or naturalized in the United States a citizen both of the United States and of the state wherein they reside, the privileges or immunities of citizens of the United States necessarily include both
1) their privileges or immunities of national citizenship and
2) their privileges or immunities of state citizenship.
It was also general knowledge in 1866 to 1868 that a primary goal of the Fourteenth Amendment was to outlaw the Black Codes which abridged the state common law rights of contract, torts, and property of African Americans.
To accomplish that objective, the Fourteenth Amendment simply has to be read as protecting the privileges or immunities of state citizenship as well as the privileges or immunities of national citizenship. But the Slaughter-House majority literally rendered the Fourteenth Amendment unintelligible.
For that reason, the Supreme Court had to read back into the Equal Protection and Due Process Clauses all the content that it had wrongly drained from the Privileges or Immunities Clause.
But the original meaning of the Equal Protection Clause grants all persons the equal “protection” of the laws. In contrast to the Privileges or Immunities Clause, the Equal Protection Clause says nothing about equality in the making or implementing of equal laws. The noun in the Equal Protection Clause is “protection” and “equal” appears only as an adjective.
The Clause is thus quite literally all about the “protection” of the laws. Therefore the text of the Equal Protection Clause declares that no state shall . . . deny to any person within its jurisdiction the equal protection of the laws.
If the Clause had been meant to ban the making or formation of discriminatory laws, it should have read, “no state shall deny to any person equal laws” or just
“no state shall deny to any person equality.” The word “protection” – which again is the noun in the Equal Protection Clause — would have been unnecessary if the Clause was about equality in
the making of laws.
Instead, the word “protection” adds meaning to the Equal Protection Clause because it makes it clear that the Clause is fundamentally about providing equality in the
protection of those state constitutions and state statutes and state common law rules that were already made and that were in the statute books or that were in the recorded state case law.
Andrew Johnson, a former senator from Tennessee who had remained loyal to the Union during the war, was a firm supporter of states’ rights and believed the federal government had no say in issues such as voting requirements at the state level.
Under his Reconstruction policies, which began in May 1865, the former Confederate states were required to uphold the abolition of slavery (made official by the 13th Amendment to the U.S. Constitution), swear loyalty to the Union and pay off their war debt. Beyond those limitations, the states and their ruling class—traditionally dominated by white planters—were given a relatively free hand in rebuilding their own governments.
Passage of the Black Codes
Even as former slaves fought to assert their independence and gain economic autonomy during the earliest years of Reconstruction, white landowners acted to control the labor force through a system similar to the one that had existed during slavery.
To that end, in late 1865, Mississippi and South Carolina enacted the first black codes. Mississippi’s law required blacks to have written evidence of employment for the coming year each January; if they left before the end of the contract, they would be forced to forfeit earlier wages and were subject to arrest.
In South Carolina, a law prohibited blacks from holding any occupation other than farmer or servant unless they paid an annual tax of $10 to $100. This provision hit free blacks already living in Charleston and former slave artisans especially hard. In both states, blacks were given heavy penalties for vagrancy, including forced plantation labor in some cases.
Limits on Black Freedom
Under Johnson’s Reconstruction policies, nearly all the southern states would enact their own black codes in 1865 and 1866. While the codes granted certain freedoms to African Americans—including the right to buy and own property, marry, make contracts and testify in court (only in cases involving people of their own race)—their primary purpose was to restrict blacks’ labor and activity.
Some states limited the type of property that blacks could own, while virtually all the former Confederate states passed strict vagrancy and labor contract laws, as well as so-called “anti-enticement” measures designed to punish anyone who offered higher wages to a black laborer already under contract.
Blacks who broke labor contracts were subject to arrest, beating and forced labor, and apprenticeship laws forced many minors (either orphans or those whose parents were deemed unable to support them by a judge) into unpaid labor for white planters.
Passed by a political system in which blacks effectively had no voice, the black codes were enforced by all-white police and state militia forces—often made up of Confederate veterans of the Civil War—across the South.
Impact of the Black Codes
The restrictive nature of the codes and widespread black resistance to their enforcement enraged many in the North, who argued that the codes violated the fundamental principles of free labor ideology.
After passing the Civil Rights Act (over Johnson’s veto), Republicans in Congress effectively took control of Reconstruction. The Reconstruction Act of 1867 required southern states to ratify the 14th Amendment—which granted “equal protection” of the Constitution to former slaves—and enact universal male suffrage before they could rejoin the Union.
The 15th Amendment, adopted in 1870, guaranteed that a citizen’s right to vote would not be denied “on account of race, color, or previous condition of servitude.” During this period of Radical Reconstruction (1867-1877), blacks won election to southern state governments and even to the U.S. Congress.
As indicated by the passage of the black codes, however, white southerners showed a steadfast commitment to ensuring their supremacy and the survival of plantation agriculture in the postwar years. Support for Reconstruction policies waned after the early 1870s, undermined by the violence of white supremacist organizations such as the Ku Klux Klan.
By 1877, when the last federal soldiers left the South and Reconstruction drew to a close, blacks had seen little improvement in their economic and social status, and the vigorous efforts of white supremacist forces throughout the region had undone the political gains they had made. Discrimination would continue in America with the rise of Jim Crow laws, but would inspire the Civil Rights Movement to come.