The Roots of Reconstruction

Today we share the first contribution to our scholarly roundtable on the Fourteenth Amendment. The guest editor’s introduction and conclusion can be found here and here. Subsequent posts can be found here, here, and here.

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In the decades before the passage of the Fourteenth Amendment, African American activists helped generate a concept of citizenship that changed the nation’s legal structures. Key to the story of that amendment is the decades of black protest that shaped the intellectual context of postwar lawmaking. In the antebellum period, black Americans established the roots of Reconstruction, and exploring their politics points to the ways marginalized people can shape lawmaking in a way that moves governments toward justice.

The Fourteenth Amendment was in some ways the culmination of decades of black activism. As early as the 1820s, African Americans publicly challenged exclusionary laws in northern states. They called themselves citizens as they worked toward specific legal changes including protections from kidnappers, free movement throughout the country, equal employment opportunities, and the right to vote.[1] That work was potent because white lawmakers did not agree on the significance or content of citizenship; many felt the status simply identified a person’s connection to a place.[2] In 1838, the black Philadelphian Robert Purvis lamented that when an African American was accused of being a fugitive slave, “a free-born citizen of Pennsylvania [could] be arrested, tried without counsel, jury or power to call witnesses . . . and carried across Mason and Dixon’s line within the compass of a single day.”[3] Statements like Purvis’s made specific arguments about who could be a citizen and about the legal protections that status should provide. Black activists thus constructed citizenship as a legal status in their political statements.

The process of emancipation brought African American politics and the uncertain terms of citizenship to the center of government debates as congressmen considered what black freedom should mean.[4] With that new opportunity, black people continued their work, using citizenship to make specific claims to rights and protections. African American activists gathered for meetings around the country at which they discussed strategy and publicized arguments about their legal status. Their meetings followed a pattern of black conventions from the antebellum period, but emancipation allowed more black people from the South to take part in these political forums and brought increasing urgency to arguments about the legal terms of freedom.[5]

In August 1865, activists met in the Lyceum of Alexandria, Virginia. They recognized the risks of holding a convention in what had been the most important state of the Confederacy. George Cook, a delegate from Norfolk, reported that some white southerners had tried to pay those people whom they had once owned to stay away from the convention. Others, Cook noted, threatened black Virginians, saying “that coming here would hurt us at home.” But Cook relished the high stakes of his politics, hoping to “to secure the franchise in every way that is honorable and just.” “If I die in the attempt,” he said, “my children will reverence me for it the more.”[6]

In the face of mortal danger, Cook and his colleagues pushed for sweeping legal change and for specific rights that would give texture to their new status. Delegates demanded that “as citizens of the State, the laws of the Commonwealth shall give to all men equal protection.” They sought a relationship with government that would allow any man to “appeal to the law for his equal rights without regard to the color of his skin.” They argued that voting was essential to citizen status, and they looked beyond Virginia, calling the franchise “the privilege of the nation.” They were “natives of American soil,” and “citizens of the country.”[7] These Virginians joined black activists throughout the country in outlining a vision of a new legal order. In Pennsylvania, for instance, a group declared “we are American Citizens,” and argued that because of their status, “protection and equal right to the ballot and the law, are due to us.”[8] The Civil War produced new legal relationships between the federal government and individual black people, and activists worked to sustain and shape the terms of those relationships.

It is difficult to know whether lawmakers read statements that black conventions produced or if they looked to black activists for ideas about the formal lawmaking process. But the legal terms of Reconstruction reflected many of black peoples’ chief concerns. The Civil Rights Act of 1866 declared black Americans to be citizens by birth and extended to them a set of protections by way of that status. Alongside the specific right to contract, to file lawsuits, to testify in court, and to hold property, the act secured to black people “full and equal benefit of all laws . . . as is enjoyed by white citizens.”[9] Republicans in Congress then strengthened that law by embedding its ideas in the Constitution. The Fourteenth Amendment echoed key provisions of the act, declaring citizenship a birthright and connecting it to equal protection of the laws. It empowered Congress to describe and enforce the legal relationship between individuals and the federal government. Together, these measures built a new legal order and held out the potential for further change by providing a broad outline of citizenship and allowing lawmakers to continue building its terms.[10] As black people had long desired, Reconstruction linked them to a powerful federal government responsible for legislating racial equality.

Whether or not lawmakers listened to black activists, the terms of Reconstruction emerged from a context that black people had helped to produce. Activists framed citizenship as a rights-bearing status and an important individual legal identity. Most republican lawmakers came from northern states where black people had consistently made such arguments about the nature of citizenship and the terms of their legal lives. By calling themselves citizens and using familiar forms of popular politics, African Americans shifted ideas about the possibilities of the nation’s laws, helping people to imagine and legislate black citizenship. They shaped the language available to lawmakers, insisting that citizenship should be a foundational legal status, a robust connection between individuals and the state.

But the story of the Fourteenth Amendment is also one about black Americans identifying and challenging its limits. In October 1868, a group of activists issued a public call for a national convention. They were concerned with a section of the amendment that outlined penalties to be imposed on states that denied black men the vote. Many people saw this gesture at protection as a tacit endorsement of black disfranchisement. Those who called for a convention worried that the new law allowed for “the partial or total exclusion of colored citizens from the exercise of the elective franchise and other citizen rights.” “Surely,” they said, “citizenship, as declared by that amendment, carries with it the rights of citizens.”[11]

Shortly thereafter, the Fifteenth Amendment would help secure black men’s voting rights, but immediately following the Fourteenth Amendment’s ratification, activists were concerned about the implications of a law that implicitly separated suffrage from citizenship. They spoke publicly about the flaws of the Fourteenth Amendment, continuing the work they had done in the antebellum period. That work—molding and challenging the specific language of the law—pointed a way forward for subsequent struggles by those who sought to define the legal protections available through citizenship. Black Americans in the 1860s understood that the Constitutional changes of Reconstruction were incomplete steps toward justice. They felt entitled to an array of rights and protections as citizens, and they were clear that the Fourteenth Amendment had failed to secure them. They saw, as people would continue to see, that legal declarations of equality could have limited effects on their lives and often fail to manifest their visions of justice. Since 1868, people who have been marginalized because of their gender, ability, or other characteristics, have continued to build citizenship, hoping to clarify and expand the array of rights and protections to which they are entitled under the Fourteenth Amendment.

 

[1] See for instance Elizabeth Pryor, Colored Travelers: Mobility and the Fight for Citizenship before the Civil War (Chapel Hill: University of North Carolina Press, 2016).

[2] On these uncertainties, see James Kettner, The Development of American Citizenship, 1608-1870 (Chapel Hill: University of North Carolina Press, 1973); William J. Novak, “The Legal Transformation of Citizenship in Nineteenth-Century America,” in The Democratic Experiment: New Directions in American Political History, ed. Meg Jacobs, Novak, and Julian E. Zelizer (Princeton: Princeton University Press, 2003).

[3] Robert Purvis, Appeal of Forty Thousand Citizens, Threatened with Disfranchisement, to the People of Pennsylvania (Philadelphia, 1838).

[4] Sharon Romeo, Gender and the Jubilee: Black Freedom and the Reconstruction of Citizenship in Civil War Missouri (Athens: University of Georgia Press, 2016); Laura F. Edwards, A Legal History of the Civil War and Reconstruction: A Nation of Rights (New York: Cambridge University Press, 2015), 64-89.

[5] African Americans gathered in Baltimore for a convention in 1852, the only documented meeting of its type held in the South before the Civil War. “Maryland Free Colored Peoples’ Convention,” Colored Conventions Project, accessed June 19, 2018, http://coloredconventions.org/items/show/260; Andrew Diemer, The Politics of Black Citizenship: Free African Americans in the Mid-Atlantic Borderland, 1817-1863 (Athens: University of Georgia Press, 2016).

[6] “Liberty, and Equality Before the Law. Proceedings of the Convention of the Colored People of Va., Held in the City of Alexandria, Aug. 2, 3, 4, 5, 1865,” (Alexandria, VA: Cowing & Gillis, Book and Job Printers, 1865), 3-4. Colored Conventions Project, accessed July 7, 2018, http://coloredconventions.org/items/show/272.

[7] “Liberty, and Equality Before the Law,”10-12.

[8] Pennsylvania State Equal Rights League, “To the Honorable Senate and House of Representatives of the United States, in Congress Assembled,” January 20, 1866, 2, 4-5. Schomburg Center for Research in Black Culture, New York Public Library, New York City.

[9] Civil Rights Act of 1866, 14 Stat. 27, sec. 1.

[10] George Rutherglen, Civil Rights in the Shadow of Slavery: The Constitution, Common Law, and the Civil Rights Act of 1866 (New York: Oxford University Press, 2013); Edwards, A Legal History of the Civil War and Reconstruction, 102-105.

[11] Proceedings of the National Convention of the Colored Men of America, Held in Washington, D.C., on January 13, 14, 15, and 16, 1869 (Washington, D.C.: Great Republic Book and Job Printing Establishment, 1869), 1.