Slide 1: The Civil War’s Betrayal: The Failure of Reconstruction and the Legacy of the Reconstruction Amendments
Welcome to the third lecture in our exploration of U.S. history and constitutional law.
In our first lecture, we looked at why the Constitution was written, the structural advantages it gave slave states and less populated states, and how these advantages have shaped our politics for more than two centuries. We also saw how Thomas Jefferson and James Madison, when they were out of power, created a political party and acted in many ways to frustrate the policies of the Washington and Adams administrations.
Slide 2: Areas of Contest
We identified three Areas of Contest that still are at the heart of our political struggles:
— The extent of Congressional power over the states
— The extent of Congressional power over the Supreme Court
— The dominance of national politics by Favored Minority Coalitions — coalitions which include factions which have disproportionate political power because of structural advantages permitted under the Constitution, either because:
— They control states through voter suppression, or
— They control less populated states which have disproportionate power relative to the size of their population
In our second session, we moved into the 19th century. We saw how the Nation barely survived the Presidential administrations of Jefferson and Madison, as:
— They were lucky that the former Haitian slaves defeated Napoleon leading to the Louisiana Purchase,
— They mismanaged the conflict with Britain, both before and during the War of 1812,
— They were lucky that their abusive economic policies did not cause the New England states to secede, and
— They were lucky that the British abandoned the War after defeating Napoleon.
We then explored how the Marshall Court defined national power, how slavery’s expansion — culminating in the Supreme Court’s Dred Scott v. Sandford decision — brought the nation into Civil War, and how Congress directly defied the Supreme Court by enacting a law, An Act to secure Freedom to all Persons within the Territories of the United States, which directly contradicted the Court’s holdings in Dred Scott.
Slide 3: Menu for Episode 3
Today, we will examine the aftermath of the Civil War — a moment when the United States had a chance to fulfill its founding promises — and how that moment slipped away.
We’ll see how:
The Constitution was amended to enable the reconstruction of the South and to create what historians call the Second Founding, and
We will see the supposedly defeated Confederates never stopped fighting, but instead became terrorists, violently resisted reconstruction, and emerged with greater structural advantages in the contest for control of the National government.
Here’s the central claim: The Civil War did not fully achieve its goals.
Yes, the Union was preserved. Yes, slavery was abolished. But the vision of a new constitutional order — one based on equal citizenship, full political rights, and, more importantly in the context of today, a Congress empowered to enact legislation to achieve those goals — was sabotaged by political opposition, terrorism and racial violence, and the Supreme Court’s interpretations of the Constitution.
We’ll explore:
— Why the war was fought and how its goals evolved
— What the Reconstruction Amendments promised
— How the Court’s decisions and political compromises gutted those promises
— How the former Slave Powers, their allies and progeny survived in new political coalitions
— Why the Nation moved on
You will have to do a bit more work today. In order to understand how the victory over the traitorous slave owning factions leading the South was betrayed, you will need to pay careful attention to the words of the Reconstruction Amendments, and intentions of the Framers of the Reconstruction Amendments, and to the betrayal of those intentions by the Supreme Court in its misreading and misusing those words.
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Slide 4: Why Was the Civil War Fought
For the South:
The political class leading the South put forward two formal justifications for secession and war:
First, they claimed a constitutional right to secede, grounded in the compact theory of the Constitution. They relied on the Virginia and Kentucky Resolutions of 1798, recklessly authored by Jefferson and Madison, which argued that the Constitution was merely a pact among sovereign states, dissolvable at will.
Second, they argued that remaining in the Union threatened their most important “property”—their enslaved labor force. Mississippi’s secession declaration stated it with remarkable clarity:
“Our position is thoroughly identified with the institution of slavery — the greatest material interest of the world.”
And Alexander Stephens, the Confederacy’s Vice President, declared that the new government rested on the “cornerstone” belief that Black people were inherently unequal and that slavery was their “natural and normal condition.”
But don’t be fooled. It wasn’t just slavery for the South. Slavery was a means to power.
Enslaved people were the South’s primary source of wealth and the foundation of its political dominance. The South already enjoyed the advantage of the Three-Fifths Clause. And in 1857, the Supreme Court attempted — at the urging of President-elect Buchanan — to lock in that dominance permanently. Dred Scott v. Sandford effectively created conditions under which every future state could become a slave state, regardless of popular will.
Southern radicals believed the game was over. Permanent control of the Senate was within reach.
Then came Abraham Lincoln.
Lincoln understood exactly what the Dred Scott decision threatened, and opposition to the expansion of slavery powered his rise. When he won the presidency without a single Southern electoral vote, Southern elites knew their long-term strategy had failed. If they stayed in the Union, slavery would be contained—and containment meant eventual death.
So they chose a different game: war.
For the North:
The North’s initial stated war aim was preserving the Union — not ending slavery. But crucially, letting the South go was never a path to peace.
Northern leaders understood that time favored secession. A successful Confederate breakaway would invite foreign recognition, foreign credit, and foreign arms. William Seward and others warned in 1861 that once European powers treated the Confederacy as a legitimate nation — or even a legitimate belligerent — intervention would follow, and a domestic rebellion would harden into a permanent, internationally protected rival state. From that perspective, fighting early was seen as the least costly option, not the most aggressive one.
Just as important, the idea that disunion would end sectional conflict had already been disproven. Bleeding Kansas showed that slavery and free labor could not peacefully coexist while competing for control of the West. Secession did not resolve that struggle; it merely shifted it westward. Two incompatible political economies, each dependent on controlling new territories and new states, were on a collision course. If the North did not fight in 1861, it would almost certainly fight later— over the West, over the future Senate — and under far worse conditions.
Only after battlefield stalemate, mass self-emancipation by enslaved people, and mounting abolitionist pressure did Northern war aims evolve. By 1863, emancipation became not only a moral imperative, but a military and constitutional necessity.
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Slide 5: Lincoln’s Evolution and Priorities
Lincoln’s approach to slavery and the war changed as the hostilities endlessly ground on. Recall that on June 19, 1862, Lincoln signed Act CXI, which directly defied the Dred Scott decision and banned slavery in the Territories.
A month later, Lincoln tried another approach to ending slavery. On July 12, 1862, he summoned members of Congress from the loyal slave states — Kentucky, Maryland, Delaware, and Missouri — and urged them to adopt gradual, compensated emancipation in their own states. In other words, Lincoln was prepared to pay the slave owners to free the slaves, just as the British had done in 1833. He warned the Congressmen that if they refused, slavery would be “extinguished by mere friction and abrasion — by the mere incidents of the war.” Their answer was no. The intransigence of the loyal slave owners was a clear sign that only total victory over the South would end slavery and the War.
Even after that rejection, Lincoln showed that he wasn’t then ready to ban slavery everywhere in the US. In a letter which he wrote to Horace Greeley, which Greeley printed on the front page of his New York Tribune on August 22, 1862, Lincoln wrote:
“My paramount object in this struggle is to save the Union, and is not either to save or to destroy slavery. If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.”
Nevertheless, military setbacks and political shifts convinced Lincoln that emancipation was both a moral and military necessity. The Emancipation Proclamation took effect on January 1, 1863. By Executive Order he:
Freed enslaved people in rebel-controlled states (note that did not include the border states) Invited Black men into Union military service
Slide 6: Black Soldiers Fight for the Union and Freedom
Nearly 200,000 Black soldiers and sailors joined the Union cause, giving it a manpower edge and making Black freedom inseparable from Union victory.
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Slide 7: The 13th Amendment — Promise and Poison Pill
One of Lincoln’s final acts was leading Congress to enact an amendment to the Constitution banning slavery. Section 1 of the 13th Amendment reads:
“Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”
Remember that unfortunate “except for punishment of a crime” exception. It became a gaping loophole in the 13th Amendment.
And let’s not lose sight of Section 2, which reads: “The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article.”
That same language is included in both the 14th and 15th Amendments. By these so-called “enforcement provisions,” the Reconstruction Amendments were intended to vastly expand Congressional power over the States in order to protect both the people and the Nation.
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Slide 8: Andrew Johnson and Presidential Reconstruction
Lincoln’s assassination in April 1865 elevated Andrew Johnson, a Southern Democrat from Tennessee, to the presidency. In many ways, it was as if the Vice President of the defeated Confederacy had succeeded Lincoln. In order to understand what comes next, it is essential to know that when Lincoln died, Congress was not in session and that Congress would not reconvene until 8 months later on December 5, 1865. As a result, Johnson was able to act without any check from Congress during this critical post-war period.
While Johnson accepted the 13th Amendment, he was openly hostile to Black equality. He moved quickly to restore white control of the Southern states.
— He issued mass pardons to ex-Confederates
— He allowed them to reclaim property and political power
Johnson did not seek to remove or punish anyone. He permitted the governments of the former rebel states to reconstitute themselves, often run by the same men who had oppressed the former slaves and had prosecuted a war in which 750,000 people had died.
The results of Johnson’s actions and inactions were horrific. The former Confederates realized that, with the enactment of the 13th Amendment, the word slavery was out the window. But what if they simply reconfigured the same oppressive laws and called them something different? Easy as pie. Many of the states enacted Black Codes. The Black Codes effectively restated laws which, for example, barred slaves from owning or inheriting property, operating a business, engaging in a profession, restricted Black movement, and barred Black testimony against whites.
Southern states passed “vagrancy” laws targeting freedpeople, enacted laws requiring them to work for their employers and criminalized non-compliance, arrested them en masse, and leased them to private employers through convict leasing. The horror of prison labor camps rivaled slavery-era plantations.
So where did the “crime” exception come from? The answer is Thomas Jefferson. You will recall from our first lecture that, during a short period between the end of the Revolutionary War and Jefferson’s stint in France as Ambassador, he became a representative of Virginia in the Confederation Congress. During that time, he wrote a provision, which was later incorporated into the Northwest Territories Ordinance of 1787, which banned slavery, but included the fateful exception allowing slavery in the event of conviction of a crime.
No one knows why he did this, but the exception was carried through in all future slavery nullifying legislation, including the Missouri Compromise of 1820, Act CXI of 1862, and the 13th Amendment. We are still living with his mistake today, as the 13th Amendment has never been amended.
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Slide 9: The 14th Amendment — A Second Founding
The North seethed with anger at these developments. When Congress reopened its doors and the putative Southern Senators and Representatives presented their credentials, Congress refused to seat them. Instead, Congress created a special committee, the Joint Committee of Fifteen on Reconstruction, to determine what Congress should do. What they did was enact the 14th Amendment.
The 14th Amendment was written in direct response to the Black Codes and the abuse by the former Confederates of both the freedmen and anyone, northern or southern, who tried to help them build a new society. The 14th Amendment was passed by Congress on June 13, 1866 and ratified July 9, 1868. The Amendment redefined American citizenship and state-federal relations
Let’s pause to read both Sections 1 and 5 of the 14th Amendment closely. The first sentence of Section 1 reads:
“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The first sentence is about as clear as can be. Anyone born or naturalized in the U.S. is a citizen. The only possible ambiguity is the phrase “subject to the jurisdiction thereof.” From the Congressional debates, it is clear that this phrase was meant to exclude children of foreign diplomats and children of Native Americans.
The Supreme Court confirmed this reading in 1898 in its decision in United States v. Wong Kim Ark, although, it must be said, that the Court offered that “children of alien enemies in foreign occupation” would not qualify as citizens. In order to undermine birthright citizenship, President Trump is trying to use this hypothetical to destroy an understanding which has existed since the ratification of the 14th Amendment 157 years ago.
Now let’s focus on the second sentence of Section 1. The second sentence reads:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property, without due process of law; nor deny to any person with its jurisdiction the equal protection of the laws.”
The second sentence addresses three sometimes overlapping major concepts:
“privileges or immunities”
“due process”, and
“equal protection”
It is written very broadly, leaving a lot of room for interpretation. What, for example, are the privileges and immunities of U.S. citizens?
Despite their vagueness, the authors of the 14th Amendment made clear that Sections 1 and 5 of the 14th Amendment were intended as a permanent constitutional safeguard for political and civil rights — it empowered Congress to enact legislation protecting the fundamental rights of all citizens and to guarantee equal protection and due process under law to where the states fail to do so. We know that this was the intent of Section 5 because the Framers of the 14th Amendment told us so.
On May 22, 1866, the representative of the Joint Committee, Senator Jacob Howard of Michigan, presented the 14th Amendment to the Senate for ratification.
First, Senator Howard explained what the Framers meant by privileges and immunities. The answer is found in another section of the 1787 Constitution, the Comity Clause which is found in Section 1 of Article IV.
It reads:
“The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states.”
The Comity Clause had been interpreted in 1823 by Supreme Court Justice Bushrod Washington, who happened to be George Washington’s nephew, in Corfield v. Coryell. Justice Washington explained that “privileges and immunities” are the fundamental rights of U.S. citizens. In explaining the 14th Amendment to the Senate, Senator Howard directly quoted Justice Washington.
He said:
“The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.
What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole, … to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised…
These “privileges” and “immunities” also include the key rights enshrined in the Bill of Rights’ first eight amendments.”
After defining the meaning of the privileges and immunities, Senator Howard explained:
“The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees. How will it be done under the present amendment?
As I have remarked they are not powers, and therefore it is necessary, if they are to be effectuated and enforced, as they assuredly ought to be, that additional power should be given to Congress to that end.
This is done by the fifth section of this amendment, which declares that “the Congress shall have power to enforce by appropriate legislation the provisions of this article.” Here is the direct affirmative delegation of power to Congress to carry out all the principles of all these guarantees, a power not found in the Constitution.
In other words, Section 5 arms Congress to protect people when states fail. Section 5 was intended to create a major change in the power of Congress over the States, one of the three Areas of Contest which we are exploring throughout this Series. Nevertheless, as we will see, only seven years later, the Supreme Court’s narrow reading of the meaning of privileges or immunities in its The Slaughterhouse Cases decision buried the 14th Amendment’s intended expansion of Congressional power.
There are two more very important questions which must be reviewed before examining the 15th Amendment. The first is the question of whether the 14th Amendment empowers Congress to enact legislation affecting private actors. In answering this question, it is extremely important to know that one of the primary reasons that the 14th Amendment was written, was specifically to empower Congress to enact Civil Rights legislation.
Before Congress enacted the 14th Amendment, the same Congress enacted the Civil Rights Act of 1866. This legislation criminalized private behavior. It made it a federal crime for any person — not just state officials — to deprive a citizen of rights such as making contracts, suing, giving evidence, owning property.
One of the primary abolitionist Republican legislators, John Bingham of Ohio, actually voted against the Civil Rights Act of 1866 because he did not believe that the 13th Amendment gave Congress the power to enact law affecting private behavior. And, to show that Congress meant the 14th Amendment to grant Congress this power, after the 14th Amendment was ratified by the States, Congress actually re-enacted the Civil Rights Act of 1866, as the Civil Rights Act of 1870, to make sure that no could argue that the 14th Amendment failed to act retrospectively.
The second question which we must look at goes to the heart of the structural advantages held by the slave owners. Let’s take a brief look at Section 2 of the 14th Amendment.
[PUT ON SCREEN BUT DON’T READ: The actual text reads, in part, “When the right to vote at any election for the choice of electors for President and
Vice-President of the United States, Representatives in Congress, the Executive and Judicial
officers of a State, or the members of the Legislature thereof, is denied to any male inhabitants of such State, being twenty-one years of age, and citizens of the United States or in any way abridged, except for participation in rebellion or other crime, the basis of representation therein shall be reduced in proportion which the number of such male citizens shall bear to the whole
number of male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”]
The Joint Committee of Fifteen were worried that, when the former rebel states reentered Congress, the former slave owners who controlled those states would have more power under the Constitution than they did before the Civil War. The reason for that fear was, paradoxically, the 13th Amendment which freed the slaves. You will recall that, in the apportionment process which determined how many representatives each State has in the Electoral College, slaves were included as ⅗ of a person.
After the ratification of the 13th Amendment, each former slave would now count in the apportionment process as a full person. That would be fine if the freedmen were permitted to vote. However, they feared, accurately as we will see, that the former slaves would not be permitted to vote. As a result, the ⅗ clause would become the 5/5 clause. In order to prevent this disaster, Section 2 of the 14th Amendment imposes a penalty on any state which denies or abridges the right to vote of its citizens-the proportionate loss of representation in the House.
Unfortunately, Section 2 has never been enforced, but don’t forget it, as it will be part of the legislative program which we will discuss in our last lecture.
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Slide 10: The 15th Amendment — A Hollow Promise
Now let’s look at the last Reconstruction Amendment, the 15th. Except for the apportionment penalty under Section 2, the 14th Amendment did not explicitly address voting rights, although, as we learned from Senator Howard, the voting rights are fundamental and thus were addressed in the 14th Amendment. So, after the elections of 1868, where the Republicans’ electoral edge was reduced, they realized that voting rights had to be directly addressed in the Constitution.
“The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.”
The 15th Amendment was ratified by the States on March 30, 1870. It is the most poorly drafted of the Reconstruction Amendments. Instead of a flat statement that, for example, all (male) citizens over the age of 21 have the right to vote, the Amendment prohibits denying or abridging the right to vote based upon race, color, and former condition of servitude.
That language left a loophole the size of a barn door. It did not take a genius to figure out ways, such as poll taxes, subjectively administered literacy tests, grandfather clauses, white primaries, gerrymandering, property qualifications, felony disenfranchisement, and intimidation and violence, by which white supremacists were enabled to limit and eventually eliminate voting by virtually all African-Americans in the South.
By 1900, Black voter registration in the South was nearly wiped out.
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Now let’s look at how the Areas of Contest Scoreboard would look as envisioned by the Framers of the Reconstruction Amendments:
Slide 11: Areas of Contest Scoreboard as Envisioned by the Framers of the Reconstruction Amendments
Congress v. the States: Increased Congressional power over the States in order:
— to ban slavery and its incidents
— to protect the fundamental rights of Americans,
— to guarantee equal protection under the law for all to guarantee due process of the law for all to punish states which deny or abridge the right to vote
The Reconstruction Amendments should have led to vast changes in Congressional power to enact laws effecting these purposes. As we will see, that is not what occurred.
Congress v. the Court: As we discussed at the end of our second session, Congress asserted its constitutional powers both to control the Court and to interpret the Constitution.
Reduction in Structural Advantages of the Vote Denying and Vote Suppressing States: It appeared that Section 2 of the 14th Amendment had eliminated the principle advantage of the Favored Minority slaveocracy-the ⅗ clause.
The Reconstruction Amendments were designed to flip the Areas of Contest: empower Congress over the states, let Congress check the Court by statute, and collapse the slaveocracy’s structural advantage.
Two things were definitely clear. After the Civil War, everyone was very aware that the struggle for national power is a contest and that the rules of the contest are critical to the results, and the Reconstruction Amendments revised the Constitution to make it clear that Congress had the power to change those rules to protect the fundamental rights of all and bring us closer to equality.
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Slide 12: The Civil War Did Not End at Appomattox Courthouse
Slide 13: The Creation of the Ku Klux Klan
On December 24, 1865, six former officers of the Confederate army established the first Ku Klux Klan chapter in Pulaski, Tennessee. The KKK and similar terrorist groups such as the Knights of the White Camellia, the White League, and the Red Shirts, sought to reinstate their rule (or “redeem” in their self-righteous language) by overthrowing the multi-racial state governments enabled by the victorious United States, using voter intimidation and violence against African-Americans and anyone who came South to help establish a new way of life.
The Reconstruction Acts
The mid-term elections of 1866 were fought over whether or not the electorate (minus the defeated rebel states) supported the 14th Amendment and Congressional reconstruction or Johnson’s Presidential reconstruction, which allowed the South to re-enter the Union as if there had been no Civil War. The Republicans won by such a large margin that Congress was empowered to enact its reconstruction program without fear of a veto by Johnson.
Slide 14: Map of the Southern Military Districts Under the Four Reconstruction Acts of 1867.
And, in 1867, Congress did just that, enacting four Reconstruction Acts which put the Southern territories under military control and enabled the creation of state governments elected with the votes of Freedmen and opponents of the slavocracy.
Slide 15: The Enforcement Acts of 1870–1871
Nevertheless, the former rebels and their acolytes kept fighting. The terrorists seriously weakened the Black political leadership through its use of assassinations and threats of violence, and it drove some people out of politics. The continuing guerilla war caused a sharp reaction once President Grant took office in 1869. In 1870 and 1871, Congress, acting pursuant to its powers under the 14th and 15th Amendments, enacted three Enforcement Acts.
The Acts were intended to empower the military and the Federal courts to protect the civil rights and political rights of both the newly freedmen and people from all over the country who come South to help create a new society on the ashes of the defeated Confederacy. Implementation of the Acts initially had some success, as the Federal government secured convictions and the Klan was suppressed in the Carolinas. But, Grant’s efforts weren’t enough.
Slide 16: The Amnesty Act of 1872
The seemingly endless fighting, together with scandals in the Grant administration and a financial panic, eroded the will of the Northern electorate to implement the measures necessary to defeat the continuing insurrection. The old question of the purpose of the Civil War, unification or elimination of slavery and its vestiges, resurfaced.
Several prominent Republicans, including Horace Greeley and Charles Sumner, split from Grant and formed the Liberal Republican Party. They supported enactment by Congress of an Amnesty Act which would eliminate the bar imposed by Section 3 of the 14th Amendment on insurrectionists holding office. You will, of course, remember that President Trump was at risk (and, theoretically, still is) at risk of being barred from office by Section 3 because of his organizing and aiding the January 6 attack on Congress.
The Amnesty Act granted amnesty to almost the entirety of the former enemy in the mistaken belief that allowing the rebel leadership to participate in the governance of their states and the nation would end the violence and allow the former slaves to be accepted as citizens. Sumner, in particular, supported the Amnesty Act but only on the condition that Congress also enact a stronger Civil Rights Act.
Under political pressure, Grant supported the Amnesty Act of 1872. While the enactment of the Amnesty Act helped Grant to easily win a second term, and Sumner lived to see the enactment of the Civil Rights Act of 1875, the short and long term results of this decision were catastrophic. The enactment of the Amnesty Act did nothing to stop the violence anywhere in the South.
Instead it emboldened and empowered the former rebels.
Slide 17: Louisiana Blues
Louisiana proved to be a focal point both of:
terrorism, which ultimately led to the end of Reconstruction, and, as we will see,
the Supreme Court’s gelding of the Reconstruction Amendments.
The 1872 Louisiana gubernatorial election pitted Republican William Kellogg and Democrat John McEnery. McEnery was a Confederate officer and, but for the Amnesty Act, he would have been barred by Section 3 of the 14th Amendment from holding office. Kellogg won the vote, but McEnery challenged the results and then sought to violently overthrow the Kellogg administration.
Slide 18: The Colfax Massacre
The bloodiest event was the Colfax Massacre. A group of African Americans had gathered at Colfax Courthouse to organize in support of the Kellogg administration. A mob of 300 former Confederates, armed with a cannon, attacked them and forced them into the courthouse which was then set on fire. When the men tried to surrender, they were massacred. While the exact number of deaths is not known, estimates range from 60 to 280 freedmen were murdered. By the time that Federal troops arrived on the scene two days later, the murderers had fled to Texas and other parts unknown.
McEnery continued his violent efforts to overthrow the Kellogg administration. On September 14, 1874, five thousand of his armed white militia entered New Orleans and fought off the police and state militia. In the so-called Battle of Liberty Place, they occupied the statehouse and armory and turned the Republican Kellogg out of office until President Grant sent in the U.S. Army to recapture New Orleans.
Slide 19: The Fateful Election of 1876
The former Confederates achieved their objective with the Presidential election of 1876. The candidates were the Republican Hayes and the Democrat Tilden. During the run-up to the election, the terrorists unleashed a series of attacks on black Republican areas in the South, particularly in South Carolina, Florida, and, of course, Louisiana. Their intention was to prevent blacks from voting by murder and intimidation. They succeeded.
The election was extremely close and the violence made it impossible to determine a clear and fair result. Ultimately, the election was determined by a deal between Hayes and Tilden which gave the election to Hayes on the condition that he remove the last Federal troops from the former rebel states. That deal abandoned the former slaves and opened the door to almost a century of apartheid rule in the South, and the insidious growth of white supremacist ideology throughout the Nation.
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Judicial Subversion of the Reconstruction Amendments
Now let’s turn to the Supreme Court. The Court refused to accept the most important constitutional results of the Civil War. In a long string of cases, the Court destroyed the intention of the Framers to directly protect the fundamental rights of all citizens and to empower Congress and the National government to protect those rights. In the process, the Court played a huge role in turning the scoreboard grey. We will be discussing eight of those cases.
In the words of Justice John Harlan, the Court did so by sacrificing the substance and spirit of the Reconstruction Amendments through “subtle and ingenious verbal criticism.” And, just as significantly, the Court hijacked the 14th Amendment and harnessed it to protect the interests of big business. The Supreme Court used judicial interpretation to pivot the meaning of the Constitution from “We the People” to “We the States/Corporations.”
Let’s examine the Court’s handiwork:
Slide 20: We will start with the Court’s 1873 opinion in Slaughter-House Cases (1873)
A Louisiana law centralized slaughterhouses to control cholera outbreaks. Butchers sued to overturn the law under the new privileges or immunities clause of 14th Amendment arguing that the right to work was a fundamental right of every U.S. citizen.
Holding: The Court ruled against the plaintiffs by holding that almost all rights of U.S. citizens are states rights, rather than national rights.
Effect: Given the intent of the Framers of the 14th Amendment, as we have just heard explained by Senator Howard, this was a shocking result. This 5–4 decision both shrank the definition of fundamental rights of U.S. citizens to almost nothing, and, in a dispute that had nothing to do with Congress, it kneecapped the intended expansion of Congressional power over the states. Justice’s Field’s blistering dissent tracked Senator Howard’s understanding
Slide 21: Three years later came the Court’s opinion in United States v. Cruikshank (1876)
This decision arose from the Colfax Massacre. The Federal prosecutors charged and convicted several of the white terrorists under the Enforcement Acts.
Holding: The Court overturned the convictions by finding that the 14th Amendment applies only to state action and that federal power cannot punish purely private conspiracies. This decision was made despite the facts that, as Senator Howard recounted, one of the fundamental rights of all citizens is “protection by the government,” and that one of the principal reasons why the 14th Amendment was enacted was to grant Congress the power to enact the Civil Rights Acts of 1866 and 1870, which controlled private behavior.
Cruikshank left African Americans vulnerable to racial terror without federal protection. It was another significant reduction in Federal power over the states
Slide 22: U.S. v. Reese (1876)
In the same year, the Court allowed Kentucky to deny a black man the right to vote by refusing to collect his poll tax. The Court read the 15th Amendment as only banning laws which explicitly prevent voting based upon race. Thus the Court blessed voter suppression by narrowly reading the 15th Amendment. This decision was a major boon to the white supremacist Favored Minority. Kentucky’s practice should have led to a reduction in Kentucky’s representation in the House pursuant Section 2 of the 14th Amendment.
Slide 23: Civil Rights Cases (1883)
Then came the death knell of Civil Rights Acts. Recall that Charles Sumner had supported the Amnesty Act in exchange for the enactment of a stronger Civil Rights Act. The Civil Rights Act of 1875 banned racial discrimination in public accommodations.
Holding: In 1883, the Court struck down the Civil Rights Act of 1875. It opined that Congress did not have the power to enact Civil Rights Acts because the 14th Amendment only affects state actions, not private actions. In other words, it determined that the 14th Amendment did not apply to state inaction in the face of discrimination by private actors. This narrow reading of the 14th Amendment flies in the face of the fact that, as we discussed earlier, one of the principle purposes of the Framers of the 14th Amendment was to empower Congress to enact Civil Rights legislation regulating private behavior.
Sumner made a tragic bargain. He traded permanent amnesty for what he thought would be permanent rights — but left their enforcement to a Court already drifting toward the old ruling class. Eight years later the Court buried his Civil Rights Act, and the amnestied Confederates walked back into power.
Effect: The Civil Rights Cases legalized segregation by private actors — ushering in Jim Crow. This holding has never been overturned. The Court had a chance to do so when it considered the constitutionality of the Civil Rights Act of 1964. While the Court upheld the law, it chose to do so finding that Congress had the power to enact the Civil Rights Act pursuant to its power to regulate interstate commerce. This failure by the Warren Court presents a risk to all existing and future civil rights legislation.
Slide 24:
As protection for Black citizens narrowed, the Court began extending 14th Amendment “personhood” logic to corporations — an early step in the Amendment’s capture by business interests. In Santa Clara County v. Southern Pacific Railroad (1886), the Court accepted — without formal ruling — that corporations were “persons” under the 14th Amendment.
Slide 25: Plessy v. Ferguson (1896).
Ten years later, in 1896, the Court announced its decision in Plessy v. Ferguson. This opinion cemented the legal foundation for apartheid rule in the former Confederacy. The case arose when Louisiana enacted a law mandating separate railway cars for blacks and whites.
Holding: The Court opined that a state is allowed to maintain segregation so long as it provides “equal” facilities and services to blacks.
Effect: Forty years later, the Nazis were so impressed with the statutory results of Plessy, that they modeled the Nuremberg Laws on Jim Crow legislation. The Nuremberg Laws were actually less strict than the laws enacted by many of the Southern states, as the Americans imposed a “one drop of blood” rule, while the Nazis’ laws stopped tracing Jewish ancestry at the grandparental level.
Slide 26: Williams v. Mississippi (1898).
In its 1898 decision Williams v. Mississippi, the Supreme Court again put its finger on scale enhancing the power of the white supremacist Favored Minority.
Mississippi’s 1890 constitution introduced poll taxes, literacy tests, and understanding clauses that effectively disenfranchised Black voters while appearing “race-neutral.”
Holding: In Williams the Supreme Court unanimously upheld the state constitution, reasoning that because the provisions did not explicitly mention race, the racist laws did not violate the 15th Amendment.
Effect: Williams gave a constitutional green light to Jim Crow voter suppression laws. Other Southern states quickly copied Mississippi’s model, cementing nearly total Black disenfranchisement for decades.
Slide 27:
In 1903, the Supreme Court determined that it was incapable of stopping Jim Crow. In Giles v. Harris, the plaintiffs alleged that Alabama’s entire voting system was structured to exclude Black citizens. Justice Holmes did not deny it. Instead he argued that if that allegation were true, then ordering a few officials to place the plaintiffs on the rolls would be meaningless — because the whole structure would still deny them effective suffrage.
Holmes insisted that the federal courts lacked the power to “supervise the voting of the whole people of a State.” In other words, the judiciary could not reconstruct or administer Alabama’s electoral system without assuming an essentially legislative or executive role.
It is instructive to compare this decision with the 20th century bussing cases, for example, Swann v. Charlotte-Mecklenburg (1971), where the Federal Courts became very involved with the reorganization of school districts, and Robert’s 2019 decision in Rucho v. Common Cause, where Roberts acknowledged that political gerrymandering is unconstitutional but decided that the Courts don’t have the power to do anything about it.
The lesson we must learn from these cases is that if the Courts say they lack the tools to enforce the law, then Congress must provide those tools.
Slide 28:
Lastly, in Lochner v. New York (1905), the Court struck down labor regulations in the name of “liberty of contract” — a doctrine that shielded business from progressive legislation. This is the most famous example of the Court reinterpretting the 14th Amendment and putting it to different uses.
The Lochner era Court which said that it could not protect Black citizens from lynching or disenfranchisement found robust constitutional rights for railroads and factory owners.
This wasn’t constitutional neutrality. It was a choice. And the choice had huge implications in all of the Areas of Contest.
Section 11
Slide 29: The Constitution is Changed but the Freedmen are Abandoned and Congressional Power Languishes
We have now explored several of the reasons why the Reconstruction Amendments failed to achieve the goals of their Framers. Before we end today’s session, it is important to acknowledge that many other factors affected the structural advantages held by Favored Minority factions during the post-Civil War era.
Slide 30: Other Conflicts, Priorities and Opportunities
Technological Advances and the Growth of Industrialization and Monopoly Capitalism. The late 19th century saw explosive economic growth, the rise of the Robber Barons and Trusts, and severe strife between labor and capital, with governments most often siding with capital. Violent strikes were common, as workers demanded better working conditions and fought reduction in wages.
This era also saw the growth of urban areas and a developing middle class
The Indian Wars, which lead to the elimination of the Native Americans as a separate military and political force, their internment in reservations and attempts to integrate them into U.S. society. The policy toward the Native Americans was one of the areas of agreement among the contending political forces that controlled the Nation during the second half of the 19th century.
Immigration. Immigration to the United States exploded during the second half of the 19th century. Immigration played a big role in the political structure as immigrants (other than Chinese) were eligible for citizenship between two to five years after arrival.
Internal Migration. Most immigrants entered the U.S. through the port of New York City. While many stayed in the New York area, large numbers of immigrants and others moved to other states. Many states, especially those with sparse populations, actively sought to attract newcomers by offering jobs or land for farming.
New States. New Western states joined the Union, often with racially exclusionary laws, and received equal representation in the Senate, further diluting the national will for civil rights
The Progressive Movement. In the 1890s, a new Progressive movement developed. Reformers sought to address the many issues arising from the forces we have been discussing-rapid industrialization, urbanization, immigration, political corruption, loss of competition from monopolies and great concentration of wealth. Politicians from both of the existing parties tried to align themselves with the movement, from Democrat William Jennings Bryan to Republican Teddy Roosevelt.
All of these factors captured the attention of the leadership of the nation and the voting populace and combined with the Supreme Court’s misreadings of the Reconstruction Amendments to allow the white supremacist factions which controlled the old South to survive and then thrive at the national level as part of the Democratic Party coalition.
Section 12 — Areas of Contest Scorecard (1900)
By 1900, the Court had crippled the Reconstruction Amendments. It was as if the South had won the Civil War. Let’s check the Areas of Contest Scoreboard:
We see that the disproportionate power of the Favored Minority Factions is stronger than it was before the Civil War:
Vote Denying States: The Court, through its decisions in Reese, Williams, and Giles (and future 20th century decisions to come), strengthened the white supremacist class in the Southern states by effectively changing the ⅗ clause to a 5/5 clause. Their power grew because the value of each former slave in the decennial apportionment process increased by ⅔, thus increasing the number of representatives in the House and the number of electors controlled by the white supremacist Favored Minority faction. Yet the black Southerners had no more ability to vote than when they were slaves. Moreover, the solid South reclaimed its position as a critical portion of the Democratic Party coalition.
Less Populated States: The nascent power of the new rural western states was up for grabs, leading to swings in power between the dominant political coalitions, the Republican and Democratic Parties.
As to the Power of Congress over the States: The Court denied the intended expansion of Congressional power through its decisions in The Slaughterhouse Cases, Cruikshank, and the Civil Rights Cases
Power of Congress over the Court: The power of the Court grew through Congress’s failure to enact legislation in reaction to the Court’s misreadings of the Reconstruction Amendments.
Conclusion and Preview
One can imagine a different path for the country through the post-Civil War period. It would have required political will by Congress to both confront the Court as it misread the meaning of the Reconstruction Amendments and to confront the Southern racists, as they implemented and hardened Jim Crow apartheid rule.
Congress had the tools to destroy the power of the vote denying and suppressing states. The most powerful tool is Section 2 of the 14th Amendment, which would reduce the national political power of any vote denying or suppressing state.
And Congress had the tools to enhance its own powers vis a vis both the states and the Court. It just needed to act.
In fact, Congress almost did act. In 1890, the Republicans controlled both houses of Congress and the Presidency. Henry Cabot Lodge of Massachusetts, then a Representative, proposed the Federal Elections Bill of 1890 which would have empowered the Federal government to overcome the white supremacist vote suppressing strategies. The Bill passed the House and
would have been enacted, but for the fact that elements of the Republican coalition in Congress had different priorities-Western Republicans wanted the Federal government to buy silver and Eastern Republicans wanted to impose protective tariffs, and those priorities enabled the Southern Democrats to block the bill in the Senate by the first effective use of the filibuster.
The Reconstruction Amendments — the 13th, 14th, and 15th — remain part of the Constitution. But for more than a century, their full power has been denied.
In our next lecture, we will bring our historical and legal review up to date. We will see how, contrary to the intent of the Framers of the Reconstruction Amendments, the structural advantages of the Favored Minority Factions have actually grown over the last 125 years.
And, finally, we will end our lecture series with an exploration of a legislative program — possible under the Constitution as it exists today — to dismantle most of the structural advantages held by today’s Favored Minority Coalition.
Continue to Script of Episode 4 >