Con Law, Slavery

In 1865 the ratification of the Thirteenth Amendment officially abolished slavery in all areas of the United States. Congress used the Fourteenth Amendment equal protection to set up military dictatorships to push whites into compliance with the doctrines of fundamental fairness and due process protections for freed black slaves. These Reconstruction efforts took place in the South under Northern army occupation, but their efforts were limited and doomed for two reasons. First, radical Republicans inserted an army one-third the size necessary to secure the areas they were given--they could offer only limited protection to blacks. Second, when the income tax was phased out after the Civil War, there was no longer any funding to support the Reconstruction efforts. As a result, Reconstruction officially ended in 1877 when President Hayes told the troops to stand down. Blacks were left to fend for themselves and the government began to look the other way.

Formal and informal laws were put in place in the South that worked together like scissors to cut out the intent of the Civil War Amendments. The development of equal protection policy from the ratification of the 14th Amendment (1868) until Millikin (1974) underscores at each stage in this history, the influence upon the Court of ideology, social science, and enforcement problems. In this paper I will discuss how a typology of oppression was put into the void left by Reconstruction. I will show how these formal and informal laws were used to create a structure of white internal colonialism by systematically using physical intimidation, economic dependence, political disfranchisement, and social humiliation to keep blacks in poverty and in positions of servitude.

The nascent withdrawal of federal protection against physical intimidation of blacks can be seen in two cases. In U.S. v. Cruikshank (1871), Southern Sheriff Cruikshank gunned down and killed two black men who had defied his order to stay away from a political meeting. The Union Army arrested and convicted him but the Court overturned the conviction because they ruled that the Fourteenth Amendment was designed to prevent racial discrimination and the Court found no evidence of racial discrimination by Cruikshank. Federal protection of blacks was also not extended in the Slaughterhouse Cases (1873). Here Justice Miller's opinion said the Fourteenth Amendment simply defined the difference between state and national citizenship. Although it reinforced the protection of negroes against state injustice, it did not embody natural law and was not meant to censor the legislation of the States.

Blacks were unhappy with the Slaughterhouse decision because it did not seem to change the federal system and provided no Constitutional prerogative to actively defend black rights--they were left at the mercy of whites. Also, it did not guarantee federal protection of individual rights against discrimination by their own state governments. In dissent, several Justices argued that the Fourteenth Amendment was meant to grant to state citizens all the privileges and immunities that belong to citizens of all free governments--especially the right to pursue lawful employment within a free-market economy. The Slaughterhouse Cases began the transition period from nation-building to a laissez-faire economy and Social Darwinism that permitted the egregious offenses of the Black Codes in the South.

These Black Codes were formal laws passed by state legislatures that were basically reinstated slavery in disguise. These laws allowed physical intimidation, economic subterfuge, political and legal disfranchisement, and social humiliation of blacks. Blacks were excluded from political and legal protections and were subjected to two kinds of laws: formal state laws and informal, or customary unwritten laws, intended to terrorize and subjugate. Lynch laws were informal laws which allowed the murder of blacks based solely on breaches of an elaborate Southern racial etiquette. Thousands of blacks were killed yet complaints were not allowed because under Black Codes, no black could testify in court against a white person. Formal laws, such as prison codes, were also used to intimidate blacks. Although formal laws were technically color-blind and did not mention race, informal ways to get around the laws were found. Prison codes allowed localities to play political games and to set sentences for crimes. Whites were sentenced to short terms in prison or county jail while blacks were sentenced to thirty years to life for the same offenses. Black prisons at that time were death camps and perhaps as many as forty-four percent of black prisoners died in prison. Blacks quickly learned their place in the system.

Violence and economic dependence were the true foundation of the Black Codes. Blacks were not allowed to make a living and were forced to become economically dependent upon whites to survive. Under convict surety laws, enticement laws, industrial agent laws, debt peonage laws, and vagrancy laws blacks had to break the law to subsist which was the whole idea of the system of Black Codes. Blacks who had no steady employment could be arrested and ordered to pay stiff fines. Prisoners who could not pay the sum were hired out as virtual slaves. In some areas, black children could be forced to serve as apprentices in local businesses. Blacks were also prevented from buying land, could not change jobs, and were denied fair wages for their work

Political disfranchisement of blacks should have ended with the passage of the Fifteenth Amendment, but with Southern Democrats fully in charge of elections in the South, blacks were not allowed to vote, or at least only selected blacks were allowed to vote. Various tools were used to disenfranchise blacks including grandfather clauses, white primaries, literacy tests, and poll taxes. Finally in 1890, social humiliation was added to the oppression of blacks with formal segregation laws; everything became color-coded and the transition to Social Darwinism was completed.

The shift from total exclusion of blacks under the Black Codes to segregation of blacks began a new phase of Southern style oppression. Soon state and local statutes were passed that officially segregated public facilities. The NAACP challenged one of these segregation laws in Plessy v. Ferguson (1896). This was a segregation case based on a Louisiana statute that required racial segregation on the state's railroads. The Court held that such separation was constitutional as long as both races received equal treatment. Justice Brown wrote the majority decision and found that a law that stated a legal distinction between the races did not destroy the equality of the races. He said the Fourteenth Amendment was intended to create equality of the races in law, but not to end distinctions