Until Justice Be Done: America's First Civil Rights Movement, from the Revolution to Reconstruction

by Kate Masur

States were entitled to adopt policies that guarded residents against threats of fire, disease, crime, and other kinds of disorder. If the Ohio legislature believed that African Americans threatened the public peace, the Enquirer contended, it was within its rights to impose special regulations designed to discourage them from entering its jurisdiction and to hem them in once they arrived.2

The movement for racial equality in civil rights gradually found purchase in politics by organizing insurgent third parties and also by pushing to reform existing parties from within. In the mid-1850s, amid a national crisis over the expansion of slavery, the party system defined by the Whig–Democrat rivalry collapsed, and the Republican Party took form. Leaders of this new party, which was based almost entirely in the free states, embraced the movement’s longstanding vision for civil rights.

Northern Democrats in particular moved easily from traditional concerns about the economic dependency of formerly enslaved people to visions of Black criminality and racial inferiority. Many white northerners who considered themselves forward-thinking on issues of race and slavery believed that the United States was destined to be a white nation in which free African Americans would never truly have a place. Among them were supporters of the American Colonization Society and its decades-long drive to persuade free Black people to emigrate to Liberia.

In a world that was anything but egalitarian, states were empowered to legalize a host of coercive practices designed to control and manage groups considered to be dangerous or destabilizing. Legislators wrote laws targeting the transient poor and allowing paupers and vagrants to be expelled from communities at will. They construed married women and children as dependents of their husbands and fathers, denying them rights and limiting their liberty. Most germane to the activists described in this book, they passed race-based regulations that not only legalized slavery itself but also targeted free Black people and Native Americans. People seeking to challenge such oppressions found little support in the first eight amendments to the Constitution, now known as the Bill of Rights. Although those amendments, adopted in 1791, enumerated a variety of individual rights, the prevailing view was that they were designed to limit the power of the federal government, not the states.

Most Americans of this era distinguished civil rights from political rights, which included the rights to vote, hold office, and serve on juries. The majority believed political rights were more like privileges, reserved for a subset of people charged with making decisions for the whole community. Some of the white Americans who joined the movement to secure civil rights for free African Americans wanted to go no further than that. They did not support racial equality in political rights, or they did so only reluctantly, when pushed by the force of the Civil War and the need to reconstruct the nation. That cohort was in a sense the movement’s lowest common denominator, a part of the coalition that was both critically important and, at times, frustratingly timid.

In the 1780s and 1790s, the Virginia General Assembly passed laws that required free Black people to register with local officials and observe special curfews, barred free African Americans from testifying in cases involving whites, meted out harsher criminal penalties for Blacks than whites, and banned certain kinds of interactions between enslaved and free Black people. In 1793, Virginia became the first state to pass a law that banned free African Americans from migrating into the state.

But race was not the only kind of difference that was significant in this society, and many of the racist laws in Ohio and elsewhere were built atop laws designed to address challenges of poverty and dependency. These legal structures dated back to the sixteenth century and the English tradition of managing the poor. Local governments in England had responded to a rising population of mobile poor people and their demands for aid by establishing regulations designed to distinguish between those who belonged in the community and those who did not. The core idea in the English poor-law tradition was that families and communities were obliged to provide for their own dependent poor, but not for transients and strangers.

Settlement law made no pretense of treating everyone equally. Its main orientation was not individual rights but community well-being, and in this context, persons who were perceived as economically and socially independent had far more privileges than those who were not. The ability to choose one’s own legal settlement was most available to male heads of household, who in turn were expected to be responsible for dependents such as wives, children, and servants. Dependents who attempted to move on their own could be forcibly returned to the place where the husband, father, or master was a legal resident. Strangers seeking settlements in new communities had to pass certain hurdles—paying taxes, owning property, or posting security to indemnify the community against the possibility that they might become dependent on public welfare. If all went well, some might ultimately gain a settlement in a new place.

the police powers of the states were far from diminutive in the lives of everyday people. The theory of police power was grounded not in the idea that a government’s duty was to protect individual rights but, rather, in the conviction that government’s most important obligation was to secure the health, safety, and general well-being of a community. States exercised their “police power” when they regulated slaughterhouses and ports; when they established rules for the sale and consumption of alcohol; or when they made provisions to encourage commerce and build infrastructure. Laws concerning paupers and vagrants, legal settlement, and the distribution of poor relief were all “police” laws, designed to ensure public peace and protect a community’s coffers.

Even before the Revolution, in northern seaboard cities, community authorities had regularly treated people of African descent as paupers or as strangers with no legal settlement, even when they were not in motion or transient.

In 1793, it passed a law that required all free African Americans to register with town or county clerks who would record their names, sex, color, and age, and issue them certificates showing their status. That same year, Virginia lawmakers banned free people of color from moving into the state, a policy that other slave states soon emulated.21

First state referenced is Ohio

This was the beginning of what was commonly referred to as the Ohio “black laws.” Passed in 1804, the laws erected barriers to Black migration and settlement, with enforcement located at the county level. Laws required “black or mulatto” persons seeking to “settle or reside” in the state to provide proof of their freedom to a clerk of court within two years of their arrival. All current residents who were Black or mulatto were expected to register with county clerks within five months of passage of the measure. Newcomers and current residents alike would receive certificates from clerks of court. Those certificates would also serve as labor permits, for the law stipulated that employers convicted of hiring Black people who had no certificates would be fined between ten and fifty dollars. In a measure designed with fugitive slaves in mind, the law also mandated fines for anyone who “shall employ, harbor or conceal” a Black or mulatto person who was not registered.23 Every interaction with a county clerk required a fee, making it difficult for impoverished migrants to comply with the law, even if they wanted to do so.

The revised law also explicitly charged township overseers of the poor with removing Black or mulatto persons found to be either unable to support themselves or in violation of the registration laws. In essence, the overseers of the poor, whose general charge was poor relief and enforcement of settlement laws, now became enforcers of the black laws as well. Black newcomers, in turn, faced two sets of overlaid and intertwined regulations: one particular to people of African descent that required registration in the county courts, and the other compatible with settlement laws and enforceable at the township level.24

Ohio’s 1807 black laws included an additional and particularly unjust provision: It forbade Black and mulatto persons from testifying in court cases involving whites. That kind of law was increasingly typical in slaveholding states, and Ohio’s adoption of it in 1807 suggests the legislature’s determination to further diminish the advantages free African Americans would enjoy if they migrated to Ohio. Without the same right as whites to testify in court, African Americans would have little ability to defend their most basic rights—to enforce contracts, secure wages, or obtain justice in criminal cases.

The House then officially renamed the bill. Instead of bearing a name that associated it with prejudice against persons of color, House Bill 202 was now called “An act to prevent the increase of idle and disorderly persons within this commonwealth.”35 With that bit of alchemy, the Pennsylvania House moved from explicit racism to a more politically palatable policy that targeted people based on their perceived class status.

Still, the debate had been instructive. Evidently the language of race and class were to some extent fungible. Legislators who first sought to target African Americans likely knew that authorities could use discretion when enforcing race-neutral laws regulating vagrancy and disorderly conduct, allowing them to accomplish the desired ends even if the statute itself made no reference to race.

ACS lecturers and essayists often used deeply racist rhetoric, emphasizing that free Black people would always constitute a criminal class because their African “race” rendered them poorly adapted to live in cool climes or unable to conduct themselves as independent citizens. In this respect, the colonization movement was an extension of the impulses that spurred the black laws of Ohio and other free states. Most colonizationists believed African Americans could never be assimilated into American civil and political life. Most thought the United States was destined to be a white nation, and they fundamentally opposed—or simply could not imagine—any alternative.53

In the 1820s, the privileges and immunities clause (Article IV, Section 2) became critically important to the American debate about the rights of free African Americans, and it would remain so until passage of the Fourteenth Amendment in 1866. The clause read, “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” It alluded to state citizens (“the citizens of each state”), but it did more than simply recognize the existence of state citizenship; it suggested that citizens of a state should enjoy some basic prerogatives when they were in other states.

Clay’s compromise emphasized that after Missouri became a state, none of its rights would be impaired, including the right “to exclude from her jurisdictions persons under peculiar circumstances, (such as paupers, vagabonds, &c.,).”18 The compromise thus affirmed the right of Missouri (or any state) to “exclude” people it deemed undesirable in conventional poor-law categories. It reinforced distinctions between “citizens” and “paupers,” suggesting that insofar as state authorities construed free Black people as paupers, vagrants, drains on public resources, and so on, they might be excludable. Moreover, the compromise did not require Missouri to change its constitution, and it did not challenge a state’s authority to make laws targeting Black people as a suspect class. It did not venture a definition of United States citizenship or affirm that African Americans were US citizens, nor did it define the “privileges and immunities” of state citizenship. Congress left all those matters unresolved.

The move gave Black New Yorkers a place to start when they wanted to assert rights to “locomotion”—to travel and even settle in other states. In subsequent years, people waging the fight for racial equality in civil rights regularly invoked Massachusetts and New York as states that regarded African Americans as citizens. These states’ policies, read together with the Constitution’s privileges and immunities clause, troubled and contradicted those who insisted that states could exclude free African Americans at will.

The Intelligencer’s argument—that race-based regulations protected city residents from undesirable immigrants—was grounded in the concept of police powers. The core idea, widely accepted at the time, was that local government’s responsibility to secure public peace and good order was more important than its obligation to protect the fundamental rights of individuals, particularly those who were not propertied white men.

Local governments had traditionally focused much less on securing individual rights, particularly of members of marginal groups, than on guarding communities against would-be threats to harmony and good health, so it was novel to insist that everyone was entitled to untrammeled mobility.

IN THE WAKE of Cincinnati’s antiblack riot of 1829, the state legislature adopted new measures designed to further marginalize African Americans who lived within its jurisdiction. In the spring of 1831, Ohio legislators passed a new poor law that banned African Americans from ever gaining a legal settlement in the state—that is, it made them ineligible for poor relief should they become needy, and, in a more abstract sense, declared that they were perpetual outsiders to the state’s community. The legislature also passed a comprehensive law that established public education in the state but provided that public schools were “for the instruction of the white youth of every class and grade, without distinction.” The school law exempted African Americans from paying property taxes to support the public schools, but it, together with the new settlement law, sent a clear message that African Americans were not welcome in Ohio.7

Black Ohioans were impoverished and hard-pressed to accumulate wealth, the abolitionists insisted, not because they avoided work but because whites so severely constrained their employment opportunities. The society not only sought to rebut those who characterized free Black people as a disruptive class in need of regulation but also advanced rights-based, universalistic claims. Like its abolitionist counterparts elsewhere, the OASS often couched arguments for racial equality in Christian terms, urging ministers to speak out against not just the great national sin of slavery but also its associated evils, including racial prejudice.

The most significant of their political efforts at the national level, however, was their struggle in the 1830s and 1840s to persuade the state government to stand up for the rights of Black citizens of Massachusetts who were arrested while traveling or working in slaveholding jurisdictions. Unlike the movement to repeal the Ohio black laws, here the goal was not to repeal racist state laws at home but rather to seek ways of protecting the freedom of Black residents when they worked in other states.

It may have been relatively easy for the US government to ignore unhappy northern shipmasters, but legal action by British officials prompted a federal judge, South Carolinian William Johnson, to condemn the South Carolina law in 1823. The British case involved a Black sailor named Henry Elkison, whose lawyer sought a writ of habeas corpus in Charleston’s federal court to bring his client out of state custody and test the law’s constitutionality. Elkison’s lawyers insisted that the law violated commercial treaties between the United States and Great Britain and interfered with Congress’s power to regulate international commerce.

In 1831, however, Jackson’s attorney general, John M. Berrien of Georgia, basically reversed Wirt on the question of South Carolina’s still-controversial Negro Seamen Act. Responding to continuing pressure from Great Britain, Berrien insisted, as Benjamin Hunt had earlier, that there was “perfect harmony” between the South Carolina law and the US Constitution. The Negro Seamen Law was a matter of “internal police” only and did not interfere with Congress’s power over international or interstate commerce. Drawing on language in the US Constitution, Berrien claimed that federal laws, including those regulating commerce, could override state laws only if the federal laws were “both necessary and proper to the preservation of the commerce of the Union.” Free movement of Black sailors in southern ports was by no means necessary to the nation’s commerce, he argued, and therefore laws that excluded or regulated them were “a justifiable exercise of the reserved powers” of the states.

Any argument that antiblack laws were morally wrong or violated people’s individual rights had to compete against the deeply entrenched and, at the time, deeply legitimate belief that state legislatures had virtually unrestricted power to do what they believed necessary to secure the community’s well-being.14

Already in 1833, David Lee Child had pinpointed the hypocrisy of traveling slaveowners who expected northerners to honor their property rights in slaves but refused to take seriously the freedom and self-ownership of northern Black people sojourning in southern states. In a move that became increasingly widespread and important in coming years, Whitmarsh and Caldwell turned to the Constitution’s Article IV to connect the rights of free Black sailors in the slave states with the rights of slaveowners in the free ones.

Many people recognized the implications of Miln for questions of interstate migration and, in particular, for the movement of free African Americans. During arguments, one of the lawyers for New York, defending the passenger laws, cautioned that if the court decided that the commerce clause gave Congress exclusive jurisdiction over “the admission of passengers from Europe,” then the power to regulate “the arrival of passengers by land” would also fall under Congress’s authority. “If the one be exclusive [to Congress], the other is exclusive; and all vagrant laws, all poor laws, and police regulations, become, at once, solely of federal jurisdiction,” he warned. Among the state laws that would likely be invalidated were those that regulated the migration of free African Americans, as well as those that limited the entry of enslaved people transported in the interstate slave trade.

White residents’ tendencies toward violence were abetted by the black laws, which, even if dormant for long stretches, could be mobilized in attempts to give legal sanction for acts of terror.

Yet all the attention on Townshend, Morse, and Chase rendered invisible the many years of petitioning, lobbying, reporting, and political agitation that preceded the repeal. It sometimes sounded as if—as Greeley had suggested—Townshend and Morse were alone in supporting repeal, as if they had made it happen through sheer force of will and savvy politicking. The reality was much different. In Ohio and across the free states, Black activists had persistently and creatively demanded repeal, and growing numbers of white people had become persuaded that racist laws were unacceptable and un-American.

One delegate claimed that free African Americans were “idle and lazy” and that his area “was overrun with them.” Some alleged that slaveholders sent elderly slaves into Illinois to avoid the cost of caring for people who could no longer be productive laborers. One insisted that the Black population was growing because slave states were forcing out free Blacks.5 Indeed, some Illinois delegates may have felt special urgency because of Missouri’s new bar on Black migration. In describing free African Americans with such words as idle, lazy, and worthless, delegates trafficked in racist stereotypes but also drew on the poor-law tradition that had authorized governments to monitor or exclude people whom they believed threatened public order or were likely to drain public resources. Their arguments were bolstered by their view that differences in “race” were natural and immutable. One southern Illinois delegate asserted that nature had created “a barrier between the two races,” and he found it inconceivable that “negroes are entitled to all the privileges of citizenship—social and political.”

In his Dred Scott opinion, which was designated the official opinion of the court amid several concurrences and two dissents, Taney insisted that a slaveholder’s “right of property in a slave” was “distinctly and expressly affirmed in the Constitution.” By that logic, he wrote, Congress was not permitted to ban slavery in any federal territory and had acted unconstitutionally in the past when it had done so.51 That was Taney’s most critical political intervention, but the chief justice also saw fit to declare that people of African descent, whether enslaved or free, “had no rights which the white man was bound to respect.”52 In ways that sometimes go unrecognized, that resounding phrase was tied to a broader discussion of African Americans’ state and federal citizenship under the US Constitution. Here too, Taney’s argument was deeply embedded in contemporary politics. As

Taney not only denied that free Black people were American citizens. He also claimed that Black citizens of the states were not entitled to benefit from the Constitution’s privileges and immunities clause. Americans had debated the question for decades, and Taney now bestowed his authority on one side of the argument. A state could confer “the rights of citizens” to whomever it chose “within its own limits,” the chief justice said. But a person who had “all the rights and privileges of a citizen of a State” was not necessarily “a citizen of the United States.” To admit that free Black “citizens” of the states were US citizens under the privileges and immunities clause, he wrote, would be to recognize that African Americans from Massachusetts, New York, and other northern states would have “the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished.” This, of course, was precisely the kind of free movement that free Black northerners and their allies had long demanded—the same liberty to which white citizens were entitled. In equal measure, that liberty was precisely what pro-slavery southerners could not abide.

In warning that Republicans favored racial “amalgamation,” Douglas adopted a common tactic among northern Democrats, who regularly insisted that people of European descent were superior to all others and that any move toward racial equality would lead inevitably to sex between Black men and white women, and therefore to pollution of the white race. Democratic politicians may have genuinely worried that this would come to pass, but such rhetoric was also a political tactic designed to scare voters into casting their lot with the Democrats. Douglas never altered his position, stated early on, that the nation was “made by the white man, for the benefit of the white man, to be administered by white men, in such manner as they should determine.” “I am opposed to negro citizenship in any and every form,” he often said.64

They argued among themselves and with their Democratic colleagues over how far Congress could go in constraining the police powers of the states, whether the right to vote was a “civil right,” and whether Congress had authority to enforce the Constitution’s privileges and immunities clause. Even in a moment of extraordinary, almost unimaginable change, everyone carried forward political ideas and vocabularies forged in previous engagements. For Republicans, this meant invoking the promises of the Declaration of Independence and the immorality of racist laws. For Democrats, it was recourse to the argument, long used in the service of white supremacy, that states were entitled to identify, regulate, and even exclude populations they considered undesirable. The measures that emerged from that cauldron of ideology and Realpolitik marked a radical departure from the past.

The consensus among Republicans remained: Only a constitutional amendment could give Congress authority to ensure that slavery in the states was permanently eradicated. The Thirteenth Amendment, ratified on December 6, 1865, did that by declaring that slavery “shall not exist” anywhere in the United States, and then, in a separate section, explicitly stipulating that Congress had the power to enforce the decree “by appropriate legislation.”4

Contemporaries well understood that the Civil Rights Bill was entirely unprecedented. Congress had never before asserted its power in states this way. How could it do so now? Trumbull offered several answers. He began by arguing that the bill would “carr[y] into effect” the “abstract truths and principles” of the Declaration of Independence and the US Constitution. Those principles were of little use if people did not have “some means of availing themselves of their benefits.” Turning to a closer reading of the Constitution itself, Trumbull made two central points. First, he insisted that the Civil Rights Bill was simply a measure to enforce the Constitution’s privileges and immunities clause. Referencing Samuel Hoar’s 1844 expulsion from Charleston, he argued that Congress had always had authority to require states to respect the rights of citizens of other states. Prevailing legal opinion, he argued, was that “a person who is a citizen in one State and goes to another” was “entitled to the great fundamental rights of life, liberty, and the pursuit of happiness, and the right to travel, to go where he pleases.” All state citizens already had such rights, he said. The problem was that many states refused to recognize them. By declaring all persons born in the United States to be citizens of the United States and barring racial discrimination against everyone, Trumbull argued, Congress was merely exercising power that it had had all along.22

Although Bingham wanted to see the federal government protect people’s civil rights, he insisted that the Constitution gave Congress no authority to pass a law enforcing the privileges and immunities clause.23 Trumbull had an answer for people like that. The Civil Rights Bill, he also claimed, was authorized by the Thirteenth Amendment. The abolition of slavery would be meaningless if states were still permitted to “depriv[e] persons of African descent of privileges which are essential to freemen.” Non-slaveholding states had adopted antiblack laws “out of deference to slavery,” he said, but he had “no doubt” that, under the Thirteenth Amendment, “we may destroy all these discriminations in civil rights against the black man.”24 That position—that overturning antiblack laws in the states was part of Congress’s power under the Thirteenth Amendment—echoed antislavery activists’ longstanding arguments that the antiblack laws of the free states were ugly residuals of slavery. To truly eradicate slavery, it was necessary to abolish not only the chattel principle itself but all its nasty offspring. Knowing that the measure they were proposing, however justified from a moral and constitutional standpoint, represented a radical departure from the past, supporters of the bill regularly tried to downplay its significance. In addition to insisting that such a law would have been constitutional even before the war, they reminded their colleagues that it banned only race-based discrimi...

Democrats, however, were not persuaded. They homed in swiftly on the Republicans’ central aspiration, which was to limit the powers of the states, and they rejected it. They denied that the Thirteenth Amendment authorized Congress to do anything other than outlaw chattel slavery itself. Congress still had no power, they said, to reach into the states and tell them to change their laws or even to stop enforcing laws associated with the rights of their residents.

Whether Congress could constitutionally have acted in the ways he suggested was a matter of debate. It was indisputable, though, that it had never done so. Republicans now proposed to overturn practices of federalism that had held basically steady since the founding. That they did so in the name of protecting the rights of African Americans rankled Democrats all the more.

In the spring of 1866, he sued the Baltimore and Ohio Railroad for refusing him access to the first-class car. In a case heard before a local judge, the company insisted that it had the right to make and enforce regulations it believed necessary to govern the road. There was little novelty here. Americans were accustomed to the idea that governments—or, in this case, corporations—were entitled to prioritize good order and public peace over individual rights, and many saw race-based discrimination as an entirely acceptable form of regulation. Did the Civil Rights Act invalidate railroad companies’ right to separate customers by race if they deemed it necessary to keep the line running? The Baltimore court did not think so and ruled in favor of the railroad.46 The truth was that the 1866 Civil Rights Act did not clearly indicate whether public accommodations like railroads were included in its purview. Another federal law, passed nine years later, would attempt to remedy that problem.

Leading with “Congress shall have power,” the proposal sought to remedy what Bingham saw as the Constitution’s central problem—that it did not directly authorize Congress to enforce the privileges and immunities clause or the rights enumerated in the Fifth Amendment. His draft declared that Congress had power in both areas. It referred to both citizens and persons, because the privileges and immunities clause alluded to citizens and the Fifth Amendment promised rights to persons, as did the other amendments that we now know as the Bill of Rights. The proposal did not simply repeat the language of the Fifth Amendment, however. In addition, it empowered Congress to secure to persons “equal protection” in the three basic rights recognized in the amendment: life, liberty, and property.

Congress extended the right of naturalization to “aliens of African nativity and to persons of African descent.” In doing so, however, Congress rejected a broader bill that would have simply opened naturalization to all people regardless of race. It provided Asians no parallel way to circumvent the white-only naturalization policy, and Chinese immigrants remained ineligible for naturalization until 1943.56

Still, Shadd lamented the conditions produced by the Illinois black laws. In cities like New York and Cincinnati, she said, Blacks and whites were “more nearly equal by the law,” and that status made possible the “proper antagonism … which is of vital importance to final success in any undertaking.” Shadd understood that racial equality in law did not necessarily mean racial equality in practice. But she also knew that African Americans were in a far better position to fight back in places that acknowledged their basic civil rights than in those that did not.2 Her allies in the first civil rights movement would have agreed. The many and diverse people who lent their voices to the movement converged not around the most profound of anti-racist arguments, but rather around the straightforward demand that the nation accept the principle of racial equality, first in civil rights and then in political rights. They had inherited a country in which equality was enshrined in the soaring words of the Declaration of Independence, but almost nowhere else; a country in which few believed the abolition of slavery would lead inexorably to multiracial democracy; and a country where many believed that repealing racist laws would lead directly to race war. Many white people thought the problem was so intractable that the best course for free African Americans was to leave the country altogether. In the course of eight decades, from the nation’s founding to the 1860s, a growing number of peo...

State and federal courts increasingly followed Indiana’s lead, holding that the police powers of the states included the authority to regulate marriage as they saw fit. The US Supreme Court, in the 1883 case of Pace v. Alabama, upheld a state law that penalized sex (“fornication”) between men and women of different races more heavily than sex between same-race couples. The law did not violate the Fourteenth Amendment’s equal protection clause, the court said, because the “punishment of each offending person, whether white or black, is the same.”7

Drawing heavily on that case, in Plessy v. Ferguson, the US Supreme Court noted that laws requiring racial separation were “generally, if not universally” understood as appropriate exercise of states’ “police power.” Any exercise of the police power must be “reasonable,” the court acknowledged, and “enacted in good faith for the promotion of the public good, and not for the annoyance or oppression of a particular class.” Working from that standard, the court found that a Louisiana law that required racial segregation on railroads was indeed a “reasonable regulation” consistent with “established usages, customs and traditions of the people, and with a view to the promotion of their comfort, and the preservation of the public peace and good order.”8

Deference to the police powers of the states was an American tradition, and that was precisely the problem. Republicans’ Reconstruction measures were designed to protect people when they could not get justice in their home jurisdictions, but those measures and their defenders often found themselves outmatched both in the courts and on the ground. Mobilizing arguments for police powers that dated back to before the nation’s founding, as well as raw white supremacy, opponents insisted that real world challenges of social order superceded any promise of meaningful racial equality. They declared that public peace and the public good required racial segregation and subordination, and that dependent poor people were not entitled to the same rights as other free people.

From the nation’s earliest days, many laws that singled people out by race had been connected to those that targeted people based on their economic status. Americans readily accepted policies that cast suspicion on dependent poor people, particularly those who were moving from one jurisdiction to another, and subjected them to deportation, incarceration, and even sale. In places such as Ohio and Illinois, early legislatures had constructed their black laws atop old and accepted poor-law structures, justifying this matrix of regulation as necessary for the “domestic police” of the state. State legislatures had even shown that the poor-law tradition could provide a substitute when laws that explicitly discriminated based on race seemed untenable.