Erasing Dred Scott’s Shadow

Today we are publishing Hilary Green’s contribution to our Fourteenth Amendment roundtable. Previous contributions to this roundtable can be found here, here, and here. The final post and conclusion can be found here and here.

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Amid the chaos of the current political moment, the July 9, 2018, sesquicentennial anniversary of the Fourteenth Amendment’s ratification must not be overlooked. By establishing birthright citizenship, this is one of most significant Reconstruction amendments. It affirmed African Americans as citizens following the 1857 Dred Scott decision and Confederate defeat in 1865. It also reflects the past and present struggles of marginalized communities and their allies to hold the nation accountable to its democratic ideals. By highlighting how African Americans embraced a constitutional amendment during the Long Reconstruction era, some important lessons emerge for those living in the present.

The Fourteenth Amendment served as a tool of empowerment. Ratification showed African Americans across the nation that their struggle for full citizenship had not been in vain. Resistance and perseverance mattered. Upon its ratification, editors of The Elevator, a black San Francisco newspaper, proclaimed their intention to take their places as full American citizens. Of course the machinations of President Johnson, who initially threatened a veto, raised some concerns among the editorial staff and readership. And, the shadow of the 1857 Dred Scott decision loomed over the process in their minds. Would voters nationally approve this amendment guaranteeing birthright citizenship of African Americans?[1]

Once the necessary number of states had confirmed ratification, however, the newspaper announced: “Notwithstanding the silly and unconstitutional action of the Democratic Legislatures of Ohio and New Jersey, in attempting to rescind the resolutions of preceding Legislatures confirming the Fourteenth Article of the Constitution of the United States, that article has been confirmed by the requisite number of States, and is now the law of the land.”[2] Although unsure what “effect this amendment will have on the political status of the colored citizens of the loyal States,” the newspaper educated its readers by reprinting all five sections of the amendment.[3] Thus, black Californians celebrated while preparing to claim and defend all of the rights there enshrined. Within the year, The Elevator called for a national colored convention that would challenge the exclusion of black voters from the 1868 Presidential election. The editors even endorsed a Nevada senator’s bill to enforce Section 3 of the Fourteenth Amendment as a “felony punishable by fine and imprisonment.”[4]

Ratification even emboldened some African Americans to question white allies’ paternalism and publicly air their dissent. Foretelling the later rift within the women’s suffrage movement, an African-American weekly called The Christian Recorder challenged Susan B. Anthony’s racially divisive commentary on the Fourteenth Amendment in an editorial entitled “Republican Honor and Honesty.” The editorialist succinctly dismissed Anthony’s claim that African Americans were ignorant about the framers’ intent when drafting the amendment, by stating in the concluding sentence: “The truth is, Miss Anthony and her clique are prepared to sacrifice the negro, Republican party and all, if she can but attain her ends.”[5] This rebuke revealed cracks that eventually widened into the irreparable split in the women’s suffrage movement. Former allies became foes. New alliances and organizations emerged. One thing did not change. African American men and women embraced their constitutional right. They demanded their inclusion as equal partners and not as racially subordinated foot soldiers from their white allies. Often, this meant that newer generations of African American activists, notably Frances E. W. Harper, broke with their abolitionist forefathers and foremothers.[6]

The ratification process also functioned as a cautionary tale about how the struggle for an inclusive democratic society remains constant. As David Blight reminded us in a 2015 essay in The Atlantic, Frederick Douglass cautioned against being lulled into complacency after the constitutional victory embodied in the Fourteenth Amendment’s ratification.[7] The freedom struggle was not over. It merely changed. Delivered after the ratification, Douglass reminded his audience: “Had [slavery’s] death come of moral conviction instead of political and military necessity; had it come in obedience to the enlightenment of the American people; had it come at the call of the humanity … of the slaveholder, as well as the rest of our fellow citizens, slavery might be looked upon as honestly dead.”[8] The noted African American leader and former slave understood the necessity of continued vigilance against those whom might accept slavery’s demise and then fail to eliminate the racism that undergirded the institution.

Subsequent judicial interpretation of the rights of African Americans as American citizens revealed the prophetic nature of Douglass’s 1869 words. State and federal courts have both affirmed and reversed many gains granted to African Americans. Indeed, Supreme Court decisions of the late nineteenth century, including the Slaughterhouse Cases (1873), United States v. Cruikshank (1876), Civil Rights Cases (1883) and Plessy v. Ferguson (1896), contributed to the reversals of the advances made during Reconstruction.[9] At the same time, African American litigants managed to win civil suits in eight southern state supreme courts using the provisions of the Fourteenth Amendment. As Melissa Milewski has recently shown, in Chaires v. City of Atlanta (1926), Alonzo Herndon and other black barbers successfully argued that a city ordinance prohibiting black barbers from cutting the hair of white women and children and limiting their hours of operation had violated the Fourteenth Amendment by depriving these barbers of “their liberty and property without due process of the law.”[10] The equal protection clause has allowed for the some of the greatest civil rights victories, including Brown v. Board of Education (1954), Loving v. Virginia (1967), and Obergefell v. Hodges (2015) as well as major defeats of the twentieth and twenty-first centuries such as Schuette v. Coalition to Defend Affirmative Action (2014). This ebb and flow of judicial interpretation of the Fourteenth Amendment as applied to African Americans, Latinos, women, LGBTQ+, and other marginalized communities will most likely continue. Here, African Americans’ post-ratification struggles for the fair application of the amendment should prove instructive.

On this sesquicentennial anniversary, this long history of the Fourteenth Amendment and African American usage since ratification has shown the importance of vigilance, perseverance, resistance, and hope. These lessons should inspire the current social justice struggle. Recent debates on whether birthright citizenship should be abolished or limited for undocumented immigrants and other marginalized communities should convince individuals to educate themselves of this history, find allies, speak out, and vote.[11] Though significantly faded, the shadow of Dred Scott still lingers, but only continued activism and perseverance will allow for its complete erasure.

 

[1] Eric Foner, Reconstruction: America’s Unfinished Revolution, 1863-1877 (New York: Harper and Row, 1988), 251-261; “The Constitutional Amendment,” The Elevator (San Francisco, CA), July 31, 1868, 2, https://phw03.newsbank.com/cache/ean/fullsize/pl_006292018_1006_45228_259.pdf.

[2] “The Constitutional Amendment.”

[3] “The Constitutional Amendment.”

[4] “Call for a National Convention,” The Elevator (San Francisco, CA), November 27, 1868, 3, https://phw01.newsbank.com/cache/ean/fullsize/pl_006292018_1008_28590_635.pdf; “The Fourteenth Amendment,” The Elevator (San Francisco, CA), January 15, 1869, 4, https://phw01.newsbank.com/cache/ean/fullsize/pl_006292018_1009_47502_562.pdf.

[5] “Republican Honor and Honesty,” The Christian Recorder, October 3, 1868, 2.

[6] See Nell Painter, Sojourner Truth: A Life, A Symbol (New York: W.W. Norton and Company, 1996), 222-233; Bettye Collier-Thomas, “Frances Ellen Watkins Harper Abolitionist and Feminist Reformer 1825-1911,” in African American Women and the Vote, 1837-1965, ed. Ann D. Gordon, Bettye Collier-Thomas, John Bracey, Arlene Voski Avakian and Joyce Avrech Berkman (Amherst: University of Massachusetts Press, 1997), 49-54; Corinne T. Field, “Frances E. W. Harper and the Politics of Intellectual Maturity,” in Toward an Intellectual History of Black Women, ed. Mia Bay, Farah J. Griffin, Martha S. Jones, and Barbara Savage (Chapel Hill: University of North Carolina Press, 2015), 115-118.

[7] David Blight, “Slavery Did Not Die Honestly,” The Atlantic, October 21, 2015, https://www.theatlantic.com/politics/archive/2015/10/slavery-did-not-die-honestly/411487/.

[8] Blight, “Slavery Did Not Die Honestly.”

[9] Steven Hahn, A Nation Without Borders: The United States And Its World in An Age of Civil War, 1830-1910 (New York: Penguin Books, 2016), 355.

[10] Melissa Milewski, Litigating Across the Color Line: Civil Cases Between Black and White Southerners from the End of Slavery to Civil Rights (New York: Oxford University Press, 2018), 168-169, 182-184.

[11] Liz Peek, “Trump, GOP should keep DACA but scrap birthright citizenship,” Fox News, September 4, 2017, http://www.foxnews.com/opinion/2017/09/04/trump-gop-should-keep-daca-but-scrap-birthright-citizenship.html.