Civil War Amendments

Beginning in 1865 and continuing for the next decade, congressional Republicans invoked the lawmaking authority of the federal government to reconstruct the social. basis of southern politics. Until the Civil War, the Constitution had been interpreted as primarily a system of negatives. The prodigious effort necessary to fight that conflict transformed the nation's ruling document into an engine for change. The antislavery bar's stress on the positive responsibility of the national government to advance individual rights converged with the nationalism of Marshall, Story, and Abraham Lincoln. The resulting new view of the Constitution held that it imposed duties on the national government "to act positively, as an instrument, to realize purposes that had inspired the creation of the nation." ⁴⁴

The three Civil War amendments--the Thirteenth, Fourteenth, and Fifteenth-- embodied the spirit of this new constitutional order, redefining through federal authority the social and political position of blacks and the relationship of the central government to the states. The Thirteenth, ratified in 1865, not only abolished slavery but gave Congress, for the first time in any amendment, "power to enforce this article by appropriate legislation." ⁴⁵ Some scholars even argue that the amendment, which was unique in having a direct social objective, provided the necessary basis on which every incident of racial discrimination, such as segregation, could be eliminated. Whatever the merit of that argument, in practice the Supreme Court interpreted the amendment narrowly.

The Fifteenth Amendment was ratified five years later. It did not grant blacks the right to vote, but it outlawed federal and state governments from denying or abridging the right to vote based on "race, color, or previous condition of servitude." ⁴⁶ The amendment was an attempt by Republicans to establish a legal basis by which to proceed against southern whites who intimidated black voters. As with the Thirteenth Amendment, the Court applied an exceedingly restrictive meaning, limiting federal. enforcement of black voting rights.

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The Fourteenth Amendment, ratified in 1868, had the greatest influence on the long-term development of the law of personal status and, more generally, the nature of the federal system. Of the amendment's five sections, three dealt with punitive measures directed against the South; a fourth gave Congress the power to pass necessary legislation to enforce the amendment.

The first section was the most far-reaching. It established national citizenship and declared that equal protection of the laws, privileges and immunities, and due process of law extended to all persons against state action. In so doing, the amendment worked a powerful revolution in federalism, making the national government ascendant over the states. The amendment also overturned Chief Justice Taney's Dred Scott opinion, making blacks national citizens eligible for federal protection of their civil and political rights.

The specific intent of the amendment's framers remains subject to speculation, and the historical record of its congressional debate has left twentieth-century interpreters divided. One principal area of disagreement involves the question of whether the framers of the amendment meant to incorporate the Bill of Rights against the states. Until that time, the Supreme Court had held that the Bill of Rights applied only against the national government. The theory of incorporation holds that the Fourteenth Amendment worked such a profound revolution in the federal system that the rights and liberties contained in the Bill of Rights were meant to apply to the states as well. They had been incorporated in the broad guarantees of due process, equal protection, and privileges and immunities. Although some lower federal court judges accepted the doctrine of incorporation during Reconstruction, the Supreme Court rejected it, and not until the twentieth century did the justices begin selectively to incorporate most, but not all, of the Bill of Rights provisions into the Fourteenth Amendment.

The new amendment provided Republicans in Congress with authority to implement a full-blown plan of reconstruction. Congress provided for a reformation in governance of the South, effecting the repeal of the Black Codes, stemming the violence of the Ku Klux Klan, and asserting federal military, judicial, and legal power. The result was a temporary revolution in the South's political and social character. Whites were disfranchised, blacks were elected to public office, and the legal systems of some of the Confederate states fell under black influence. In South Carolina, where Klan violence was epidemic, J. J. Wright, a black man, became a justice on that state's supreme court.

Limits of Social Change through the Law

The embedded racism of the Reconstruction era limited the scope of social change through the law. The Republican party grew weary of the costs associated with reconstruction, and as the memory of the war slipped away the northern white public, which had little real interest in the fate of blacks to begin with, also lost interest. As the southern race demagogue "Pitchfork" Ben Tillman of South Carolina explained to the North: "You do not love [blacks] any better than we do. You used to pretend that you did, but you no longer pretend it." ⁴⁷

The Supreme Court was skeptical of Republican initiatives, because they reversed the traditional relationship between the states and the national government. Congress, for example, passed the Civil Rights Act of 1875, a far-reaching measure whose

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flowery preamble proclaimed "the equality of all men before the law" as well as the duty of government "to mete out equal and exact justice to all, of whatever nativity, race, color, or persuasion." The act gave to "all persons within the jurisdiction of the United States" the "full and equal enjoyment" of facilities. ⁴⁸ These words seemed to permit the government to prosecute violations in quasi-public and even private accommodations that served the public, such as theaters, hotels, and railroad cars.

Many congressmen during the final debate on the measure claimed it was unconstitutional, and the Supreme Court, in The Civil Rights Cases ( 1883), agreed. By a vote of eight to one, the justices struck down the law. Justice Joseph Bradley explained that "[w]hen a man has emerged from slavery, and by the aid of beneficent legislation has shaken off the inseparable concomitants of that state, there must be some stage in the progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the law, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected." ⁴⁹ The decision spelled the end to the positive use of federal law to promote equality among the races; it began a long cycle in which federal and state law discriminated against not only blacks, but native Americans and Chinese.

Date: 2015-01-29; view: 838