Juneteenth: The End of the Slave Constitution and the Birth of a Nation
How the 13th, 14th, and 15th Amendments Created a New Constitutional Order
When I co-wrote “A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments” 17 years ago, part of the goal was to highlight how radically different the post-Civil War Constitution was meant to be compared to the Slave Constitution of 1789 - and yes, that what it was labeled in the Brennan Center report we wrote.
The establishment of Juneteenth as a national holiday is a good time to reiterate some of the points I and my co-author J.J. Gass made on why we should consider that historic period the real birth of our nation, a more decisive break with the past than 1776/1789 was with the colonial period. Because seriously, the U.S. was still far more similar to Canada in 1790 than Reconstruction America was to the pre-Civil War Slave Republic.
The Slave Constitution of 1789 Was All About Using Federal Power to Enforce Slavery
And to be clear, the Constitution of 1789 is nothing to celebrate. It is not even the respecter of states’ rights that conservatives mythologized; in fact, the antebellum Supreme Court used the Constitution to smash state laws that challenged the rights of property and in particular any law that challenged the rights of owners of slave property. As we wrote, the New Birth of Freedom Amendments were not seen as minor adjustments but creating a fundamentally new Republic:
The view that the Constitution of 1787 enshrined states’ rights, and that the New Birth Amendments did little more than take away the states’ ability to legalize slavery and impose de jure discrimination, is a myth. Before the Civil War, the Constitution did not simply preclude the federal government from interfering with the states’ decisions regarding slavery; it affirmatively mandated federal support for the institution, to the extent of invalidating civil rights laws in northern states. That, at least, was the Supreme Court’s consistent interpretation, driving abolitionists like William Lloyd Garrison to denounce the Constitution as “a covenant with death, an agreement with hell.” And as their label implies, the Radical Republicans did not simply tinker with the Constitution, but fundamentally changed it from a pro-slavery document into a pro-equality document.
The 1789 Constitution was not incidentally supportive of slavery. Slavery infused every element and every compromise - and the key purpose was to strengthen federal power to enforce slavery.
As Georgia recalled in its 1861 Declaration of the Causes of Secession, “the question of slavery was the great difficulty in the way of the formation of the Constitution,” and without the Fugitive Slave Clause, “it is historically true that we would have rejected the Constitution.” …Contrary to the modern association of states’ rights with an anti-civil-rights agenda, it was federal power that protected slavery, with federal courts often brushing aside abolitionists’ states’-rights arguments. The Fugitive Slave Act of 1793, for example, gave slave owners the right to cross into free states and seize alleged fugitive slaves. The breadth of federal power was highlighted by the federal statutory right of slave owners to sue anyone interfering with the capture of alleged fugitives.
Students remember Dred Scott from their history books but more fundamental to the pre-Civil War era was the much earlier 1842 Prigg v. Pennsylvania decision, which struck down a Pennsylvania law meant to protect the rights of free blacks from being kidnapped by slaveowners without due process.
The Supreme Court in Prigg then had clarity that the federal government had full authority to wipe away state laws that interfered with slaveowner rights and clarity that the federal government could punish private individuals who got in the way of those rights:
“If, indeed, the Constitution guaranties the right [to demand the return of escaped slaves] . . . the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it…It is scarcely conceivable, that the slave-holding states would have been satisfied with leaving to the legislation of the non-slave holding states, a power of regulation in the absence of that of Congress.”
The Fugitive Slave Act of 1850 enacted after Prigg was even harsher - and in many ways far more the instigator of the Northern march to war than Dred Scott.
The Act created a new class of federal commissioners with the power to arrest and imprison private individuals who interfered with the recapture of fugitive slaves. The commissioners could force private citizens to act as a posse comitatus and help capture an escaped slave. Private individuals who hindered slaveholders’ efforts to catch their “property” now faced federal criminal penalties, in addition to the civil liability established in the 1793 statute. The Act could be enforced not only by the commissioners, but by the military (again acting as posse comitatus) on their behalf. Though the commissioners could determine whether an alleged runaway was slave or free, the Act notoriously paid them $10 per case if they found that the person was a slave and only $5 if they declared the person free. More allegedly escaped slaves were seized in the first year after passage than during the preceding sixty years.
The Fugitive Slave Act of 1850 radicalized many in the North, not just because it threatened free northern blacks, but because it forced anti-slavery northern whites to “play the role of police for the South in the protection of this particular institution,” as Ulysses S. Grant would later explain. Amos Lawrence, a large funder of free-soil settlers in Kansas, noted that federal raids on Boston abolitionists in 1854 were a key radicalizing event: “We went to bed one night old fashioned, conservative, Compromise Union Whigs & waked up stark mad Abolitionists.” Before the Civil War, “states’ rights” was the rallying cry of abolitionists, not of southerners celebrating the federal power that protected slave property rights.
The New Birth of Freedom Constitution Was a Radical New Founding of a Nation Built on Equality
After the Civil War, the drafters of the 13th, 14th, and 15th Amendments intended to write a mandate for federal power to enforce rights for all Americans, particularly the freed slaves, as strong as the rights of slaveowners the Slave Constitution of 1789 had protected.
The Radical Republicans naturally believed that the explicit enforcement clause of the 13th Amendment gave Congress plenary power to wipe out all vestiges of slavery. [As Sen. Trumball argued,] “Surely we have the authority to enact a law as efficient in the interest of freedom, now that freedom prevails throughout the country, as we had in the interest of slavery when it prevailed in a portion of the country.”
Congress explicitly modeled the enforcement provisions of the 1866 Civil Rights Act on the 1850 Fugitive Slave Act, criminalizing violations of civil rights by private persons just as the earlier statute had criminalized interference with slaveholders’ rights. In an analog to the fugitive slave commissioners, Congress authorized the appointment of special federal officials to enforce the rights guaranteed by the Act and authorized stiff fines for anyone obstructing those rights. The Act, in short, embodied the plenary power of Congress to enforce civil rights to the same extent as it had enforced slaveholders’ rights in the antebellum era.
Similarly, the 14th Amendment was seen as a major expansion of federal power
Congressman John Bingham, the amendment’s main author, said the amendment was designed “to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”
Reacting to the rise of Klan violence threatening white Republicans and freedmen newly winning the vote under the 15th Amendment, Congress passed Enforcement or Anti-Klan Acts, as they were called at the time, to use federal power to regulate illegal activity by private individuals engaged in undermining the rights of others:
Between 1870 and 1872, Congress passed five Enforcement Acts to protect civil rights. Congress created a positive right to vote in state and local elections and prescribed criminal penalties for anyone preventing a person from registering to vote or voting. With an eye squarely on the Klan, Congress made it a crime for “two or more persons [to] band or conspire together, or go in disguise upon the public highway, or upon the premises of another, with the intent to violate any provision of this act” or “to injure, oppress, threaten, or intimidate any citizen with intent to prevent his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States.”
Federal courts convicted hundreds of Klansmen between 1870 and 1873 for violating freedmen’s rights of property, speech, assembly, and voting, making the 1872 election the most democratic election in the nation’s history.
That Congress would pass the Civil Rights Act of 1875, banning segregation in public accommodations, transportation, and entertainment facilities. Ninety years before the 1964 Civil Rights Act, segregation was declared illegal in every community in our nation.
The debates over that bill highlight the understanding of the meaning of the new amendment’s strengthening of federal power against racism.
The debates over the Civil Rights Act of 1875 and its predecessor bills in the prior Congress are remarkable for the modern flavor of their civil rights rhetoric. One House member condemned separate-but-equal segregation, saying its sole purpose was “the subjugation of the weak of every class and race.” Another declared that segregation treated blacks like lepers. Opponents argued, as their political descendants would in the 1960s, that the national government had no power to outlaw private discrimination, but those who had drafted the 14th Amendment rejected that contention. State failures to stop private discrimination were “sins of omission” that the federal government could rectify. Who knew the meaning of the 14th Amendment better than the legislators who enacted it?
As Michael McConnell, the conservative legal scholar appointed by George W. Bush to the 10th Circuit, detailed in his research, votes on the 14th Amendment matched votes on the 1872 bill: “All eleven members of the House who had voted in favor of the Fourteenth Amendment voted in favor of the bill; the three who had voted against the amendment opposed it.” When the Civil Rights Act finally passed in 1875, all the House members who had been around to vote for the 14th Amendment supported the new law
Most provisions passed by overwhelming majorities and there was a majority to ban segregation in public schools, but that was ultimately blocked by filibusters - a so modern problem the proponents of freedom faced then as now.
White Terrorism - Backed by the Supreme Court - Subverted the New Birth Constitution
So how did this radical new national Constitution of freedom get subverted?
By white terrorism - which the US Supreme Court blocked the federal government from stopping.
The ultimate bulwark of white supremacy was violence. A vigorous federal response had beaten back murder and terrorism before the 1872 election, but by the 1874 and 1876 elections, scores of blacks and allied white Republicans lay dead as anti-civil-rights Democrats returned to power throughout the South. Federal prosecutions dropped off sharply, and the cases that were brought became harder to win because of interference from southern officials and private individuals. State governments systematically harassed and arrested federal witnesses to deter their participation, even convicting them of perjury for testimony given at federal trials. Federal witnesses were murdered quite regularly. The bloodbath climaxed with the disputed presidential election of 1876, with most southern states reporting two sets of results. The dispute was resolved by Republicans’ agreement to end Reconstruction.
The key even in this white terrorism campaign was Colfax, Louisiana.
100 blacks [were] murdered in Colfax, Louisiana in 1873 for defending their right to vote. The Supreme Court threw out the ringleaders’ convictions in 1875, saying Congress could not criminalize private violence, even when the violence was motivated by the victims’ race, even when it was designed to prevent them from exercising their constitutional rights, and even when the states did nothing to punish the offenders. According to that Court, the 14th Amendment “adds nothing to the rights of one citizen as against another.”…
Cruikshank gave private individuals a similar carte blanche to augment official discrimination with private violence. More than one hundred people were slaughtered in Colfax defending their right to vote, yet the Supreme Court declared in Cruikshank that their murderers were beyond the reach of federal law. The Klan and similar groups were now free to overthrow Reconstruction governments with impunity.
Senators who had written the Enforcement Laws denounced the Court’s decision, but in vain. Senator Oliver Morton had to concede that the 14th and 15th Amendments had been “almost destroyed by construction.” Congress was powerless to combat racist violence. Years later, W.E.B. DuBois described the Court’s decisions in terms that could have come from conservative critics of “liberal judicial activist” decisions of the Warren Court. Reconstruction’s enemies “relied upon the court to do what Democratic members of Congress had failed to accomplish
With civil rights enforcement all but shut down from 1873 onwards, Reconstruction governments were driven from office throughout the South. Violence destroyed the Republican Party in Mississippi. Taking advantage of the void, Democrats recaptured the legislature and impeached the Republican governor and lieutenant governor, driving them from office by force of arms. Similar violence would “redeem” every state in the region, to use the term adopted by white supremacists. In 1876, Confederate General Matthew Butler led a white mob to murder an opposing black militia defending the South Carolina government – and was then elected to the United States Senate by the new, “redeemed” legislature. The effects on the federal government were almost as dramatic, as pro-civil-rights Republican representatives and senators were replaced by anti-civil-rights Democrats – sufficient in number, as their successors proved in the mid-twentieth century, to filibuster meaningful civil rights legislation, even when a majority of the country supported it.
The Supreme Court also gutted the power of the federal government to stop voting rights abuses, primarily in the 1876 United States v. Reese decision, which blocked federal action against a Kentucky system designed to knock two-thirds of black voters off the rolls. The Supreme Court gutted federal voting rights laws and empowered state governments to disenfranchise blacks across the South.
The 1875 Civil Rights Act was also overturned and segregation and Jim Crow spread across the country- with the endorsement of the US Supreme Court.
Cruikshank and the anti-Reconstruction Court is Reborn in the Current Roberts Court
If white violence and a Supreme Court backing disenfranchisement feels all too familiar, that’s because the current Court has revived not just the spirit of the anti-Reconstruction Court but many of its core legal rulings, including Cruikshank.
When the Supreme Court in 2000 struck down the provisions of the Violence Against Women Act that allowed women to sue their rapists in federal court, they explicitly used Cruikshank as the precedent supporting closing the federal courthouse doors. In that case, Chief Justice William Rehnquist quoted Cruikshank’s core finding that the 14th Amendment “adds nothing to the rights of one citizen as against another” to throw Christy Brzonkala’s case out of court in United States v. Morrison.
That Rehnquist and the conservative majority could do so was because of our collective amnesia on the white terrorism behind the Cruikshank decision and our loss of the radical meaning of the New Birth Constitution. As we wrote at the time:
While no modern Court would ever cite Dred Scott or Plessy approvingly, hardly anyone noticed when Chief Justice Rehnquist quoted Cruikshank’s immunization of the Colfax murderers. That is, at least in part, because we have forgotten the people that the Chief Justice did not quote: John Bingham, the principal author of the 14th Amendment; Thaddeus Stevens, the House floor manager; Jacob Howard, who led the amendment’s passage in the Senate; or Speaker of the House Schuyler Colfax, later Vice President and, ironically, the man for whom Louisiana’s Reconstruction government named the town of Colfax. Compare the obscurity of these constitutional framers with the fame of the framers of the Constitution of 1787 – men like James Madison, Alexander Hamilton, and Benjamin Franklin.
Using Juneteenth to Revive the Memory of the Radical Meaning of the New Birth Constitution
The conservative majorities attack on voting rights in Shelby County and other cases are all based on maintaining that suppression of the radicalism of the New Birth Constitution. Attempts to suppress discussion of systematic racism in US history are all of a piece with the suppresion of that history.
On the eve of the Second Reconstruction, the scholar C. Vann Woodward observed that the history of Jim Crow was shrouded in false memories and beliefs based “on shaky foundations or downright misinformation.” Two decades earlier, when historians were still peddling that “downright misinformation,” W.E.B. DuBois noted that “[n]ot a single great leader of the nation during the Civil War and Reconstruction has escaped attack and libel.”
While the worst revisionist history has been removed from textbooks, it has been replaced mostly by silence. Teachers mention Reconstruction in passing, if at all. In most American schools, it is as if history stopped at the end of the Civil War and did not resume until the Gilded Age and the emergence of populism near the end of the nineteenth century. Popular culture has a similar hole. There have been many movies about the Civil War, but few of note about its aftermath, apart from the anti-Reconstruction epics Gone with the Wind and Birth of a Nation. If we remember whites who fought for civil rights in the South at all, it is as the rapacious “carpetbaggers” at the gates of Tara. Ken Burns’s acclaimed documentary series The Civil War never uttered the word “Reconstruction.”
Juneteenth should be a chance to overcome that amnesia, restore the memory of Reconstruction and the understanding that the 13th, 14th and 15th Amendments created a fundamentally new Constitution and marked the beginning of a fundamentally new nation.
Courts and white terrorism stalled its completion but we must stop accepting the authority of the authors of the Slave Constitution of 1789 as defining the meaning of our constitutional order. Instead, those who drafted the New Birth of Freedom Amendments and those who struggled for their passage should be seen as the real authors of our current constitutional order. And that would mean a quite different nation than the right wing Federalist Justices seek to impose on us today.