Overruled (3 page)

George Fitzhugh and Frederick Douglass disagreed about many things, but on this point they were in rare harmony. The slave system was incompatible with the disruptive and individualizing forces unleashed by the principles of free labor, and both men knew it. But where Fitzhugh's defense of slavery led him to praise socialism and assail the free-market ideas of John Locke and Adam Smith, which he denounced as amounting to “every man for himself, and Devil take the hindmost,”
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Douglass's writings and speeches were steeped in the classical liberal tradition Fitzhugh spurned. Evoking Locke's famous description of private property emerging from man mixing his labor with the natural world, for instance, Douglass pointed to black Americans “plowing, planting and reaping, using all kinds of mechanical tools, erecting houses . . . engaged in all manner of enterprises common to other men,”
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as proof that they too deserved the full range of natural rights. “Would you have me argue that man is entitled to liberty? That he is the rightful owner of his own body?” Douglass asked. “There is not a man beneath the canopy of heaven that does not know that slavery is wrong
for him.
”
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As for the alleged shortcomings of capitalism, Douglass was prepared to test his luck in the free market. “Give the Negro fair play,” he declared, “and let him alone.”
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“An Abolition War”

Those free labor principles found a temporary political home with the formation of the new Republican Party, founded by antislavery activists in 1854. As one leading party member declared in a speech on behalf of Abraham Lincoln's 1860 presidential campaign, “The Republicans stand before the country, not only as the anti-slavery party, but emphatically as the party of free labor.”
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The Grand Old Party arrived on the scene at a precipitous moment in American history. By 1854 the controversy over slavery had become the single greatest issue in American life—and the disagreements it provoked did not always involve mere words alone. Eleven years before Frederick Douglass wrote to his old master, a pro-slavery mob in Alton, Illinois, had murdered Elijah Lovejoy, publisher of the antislavery
Observer,
killing him while he defended his printing press from destruction. On a moonlit night in May 1856, the radical abolitionist John Brown, along with seven other men, including four of his sons, dragged five pro-slavery settlers from their homes near Pottawatomie Creek, Kansas, and executed them by blade and bullet. “Death for death,”
34
John Brown Jr. later explained. At the same time in many northern cities, abolitionist vigilance committees were forming to harass and oppose the slave catchers—“man stealers” they called them—unleashed by the Fugitive Slave Act of 1850, which stripped suspected runaways (which is to say any black person who fell under any suspicion at any time) of virtually all legal protections, including the right to testify on their own behalf and the right to invoke the writ of
habeas corpus.
To stack the deck even further in favor of slavery, when a suspected fugitive was brought before a government commissioner under the fugitive slave law, the commissioner earned $10 for every individual “returned” to bondage and $5 for every suspect that was set free. The Supreme Court, meanwhile, in its notorious 1857 ruling against the slave Dred
Scott, had set off a national firestorm by declaring that blacks could never be citizens of the United States and that under the principles of the American founding the black man “had no rights which the white man was bound to respect.”
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In sum, the nation was tottering on the brink of civil war. Shortly after Lincoln's election in 1860 and the resulting secession of seven slaveholding states, that war finally came.

For the abolitionists, there was little doubt about what the war's outbreak meant for their cause: The destruction of slavery must become an explicit aim of the U.S. government. As Frederick Douglass put it, “no war but an Abolition war; no peace but an Abolition peace.”
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With the surrender of Confederate General Robert E. Lee at Appomattox Courthouse on April 9, 1865, and the ratification of the Thirteenth Amendment abolishing slavery later that same year, Douglass and his allies appeared to have succeeded on both counts. Unfortunately, that appearance would prove tragically deceptive.

“They Do Not Know Whether They Are Free or Not”

In the aftermath of the Civil War, the governments of the former Confederate states quickly moved to restore slavery in practice, if not in name, by systematically eliminating or curtailing every possible avenue the freedmen might pursue in the hopes of improving their lives or securing their rights. Known as the “Black Codes,” these laws and regulations targeted everything from the freedmen's right to self-defense to their ability to seek paying work outside of the plantation system. Mississippi set the pace in the spring of 1865 when a state convention instructed the legislature to enact new laws to guard “against any evils that may arise from their sudden emancipation.”
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Alabama and Georgia soon passed similar resolutions. With the arrival of the Black Codes, it became clear what sort of “evils” those lawmakers intended to guard against.

“Every freedman, free negro, and mulatto,” declared the Mississippi Black Code, was required to provide written evidence every January of a “lawful home or employment,”
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or else face the charge of vagrancy, which in turn allowed the state to sentence them to long terms of forced labor, often on the plantations of their former masters. Florida's law “in relation to Contracts of Persons of Color” placed similar controls on black economic mobility, including by criminalizing “willful disobedience of orders, wanton impudence, or disrespect to his employer or his authorized agent, failure to perform the work assigned to him, idleness, or abandonment of the premises,”
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also punishable by forced labor. Unlike the free labor system of the North, where an absent or impudent worker risked getting fired and having to find a new job, the Black Codes basically re-shackled the former slaves to their former masters, using criminal punishment enforced by state officials to keep the plantation system running as before.

Freedmen seeking economic independence faced no shortage of government-sponsored treacheries. Under South Carolina's Black Code, for example, blacks intending to work as artisans or mechanics had to pay an annual licensing fee of $10, a sum that did not come easily to most former slaves; those who wanted to work as shopkeepers or peddlers had to pay $100 annually and also persuade a white district judge of their “skill and fitness.”
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In North Carolina, if at least one party to the sale of an animal or good worth more than $10 happened to be black, a white person was legally required to witness the sale, making economic transactions impossible for the freedmen in certain locales.

The right to acquire and use property was similarly restricted. Opelousas, Louisiana, openly declared, “No negro or freedman shall be permitted to rent or keep a house within the limits of the town under any circumstances.” The same ordinance also prevented blacks from living anywhere in town unless “in the regular service of some
white person or former owner, who shall be held responsible for the conduct of said freedman.” As for any would-be entrepreneurs hoping to earn a living in that unwelcoming place, “No freedman shall sell, barter, or exchange any articles of merchandise”
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without written permission from an employer or town official. To put it mildly, such permission was not readily forthcoming from local whites. According to Joseph E. Roy, a white Chicago clergyman who toured the South extensively between October and December 1865 on behalf of the American Home Missionary Society, “A few [white] persons whom I met would admit that [blacks] had the right to acquire property . . . but the great mass of the people were opposed to their having a chance to gain possession of real estate.”
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Overall, Roy reported, “a great many cruelties are practiced on the colored people.”
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Southern blacks readily confirmed Roy's dismal findings. “A party of twelve or fifteen men go around at night searching the houses of colored people, turning them out and beating them,” one black man testified before Congress in February 1866. “I was sent here as a delegate to find out whether the colored people down there cannot have protection.” They “are willing to work for a living,” he continued. “All they want is some protection and to know what their rights are . . . they do not know whether they are free or not.”
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Richard R. Hill, a former slave living in Hampton, Virginia, knew perfectly well that his old masters were plotting against him. “They have said that, and it seems to be a prevalent idea,” Hill declared. If the whites had their way, Hill said, “their old laws would still exist by which they would reduce [the freedmen] to something like bondage. That has been expressed by a great many of them.”
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Government officials openly expressed that same bigoted agenda. In Florida, the legislative committee charged with preparing the state's Black Code praised slavery as a “benign”
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institution and announced, “we have a duty to perform—the protection of our wives and children from threatened
danger, and the prevention of scenes which may cost the extinction of an entire race.”
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In reality, of course, it was the freedmen who faced danger at the hands of state officials and their vigilante enforcers, a dire situation made worse by the fact that most Black Codes stripped African Americans of their right to keep and bear arms for self-defense. Mississippi, for instance, made it a crime for blacks “to keep or carry firearms of any kind, or any ammunition, dirk, or bowie knife,”
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while Florida made it “unlawful for any Negro, mulatto, or person of color to own, use, or keep in possession or under control any bowie-knife, dirk, sword, firearms, or ammunition of any kind,” unless licensed by a probate judge, “under a penalty of forfeiting them to the informer, and of standing in the pillory for one hour, or be whipped not exceeding thirty-nine lashes, or both.”
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In short, the freedmen were besieged on all sides by hostile government forces that robbed them of their liberty, prevented them from exercising their economic rights, and deprived them of virtually all methods of meaningful self-defense. To say that this state of affairs violated the bedrock free labor principle of self-ownership would be a severe understatement. In the words of Alexander Dunlap, a free black living in Williamsburg, Virginia, in 1866, “We feel in danger of our lives, of our property, and of everything else.”
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Against this backdrop of state-sanctioned violence and exploitation, the Fourteenth Amendment to the U.S. Constitution was born.

“Every Security for the Protection of Person and Property”

On December 5, 1865, the Republican-dominated thirty-ninth Congress was gaveled into session in Washington, D.C. Its first and primary order of business was to put a stop to the mounting outrages occurring in
the South. To that end, congressional Republicans pursued a two-front strategy: First, they sought passage of a sweeping federal civil rights bill to protect both the freedmen and their white Unionist allies from abuse by the former Confederates; second, they drafted a new constitutional amendment to give that legislation force and provide further protections for individual rights against harmful state actions. First up was the Civil Rights Act of 1866, enacted in April over the veto of President Andrew Johnson. A groundbreaking proposal, the law held that all persons born on U.S. soil were citizens of the country (thereby repudiating
Dred Scott
's holding that blacks could never be citizens), and that such citizens, “of every race and color . . . shall have the same right, in every state and territory . . . to make and enforce contracts, to sue, be parties, and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of persons and property, as is enjoyed by white citizens.”
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Put differently, state and local governments were required to respect the fundamental rights of all Americans, particularly economic rights, or else be held accountable by federal authorities, including the federal judiciary.

To its opponents the bill looked to be an unprecedented and unacceptable attack on states' rights. President Johnson said as much in his veto message to Congress, where he denounced the Civil Rights Act as a “stride towards centralization.”
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Democratic Senator Willard Saulsbury of Delaware concurred and raised an even more specific objection. The law would give blacks “every security for the protection of person and property which a white man has,” he complained, including the right of armed self-defense. “In my state for many years,” Saulsbury went on, “there has existed a law of the state based upon and founded in its police power, which declared that free negroes shall not have possession of firearms or ammunition. This bill proposes to take away from the states this police power.”
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Indeed it did. The whole point of the Civil Rights Act was to protect the freedmen (and their white Unionist allies) from mistreatment via the Black Codes and similar provisions, a category of legislation that plainly included the gun control measure so cherished by Senator Saulsbury. The chief question was whether Congress actually possessed the legitimate authority to enforce it. In other words, did the opponents of the Civil Rights Act have a point about its constitutionality?