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

by Kate Masur

The Liberty Party wanted to bring back those ideals, and the first step would be to divorce the federal government from slavery. As Chase explained to a friend in the fall of 1841, the aim of “antislavery political action” was “complete deliverance of the Government of the Nation from all connection with & all responsibility for slavery.”

King concluded with an exhortation to voters that was typical of the Liberty Party. “Equal & exact justice to all men irrespective of color or condition is regarded by me as a sound maxim of free democracy,” he wrote. And yet, “the great question between liberty & slavery” did not concern only the rights of “colored persons.” The malign influence of the Slave Power impoverished and dishonored everyone.

Around Cincinnati in particular, some Democrats were open to arguments such as those made by former Democratic Senator Thomas Morris: that the “Slave Power” was just another incarnation of elite rule, similar to the Bank Power the Democrats had earlier opposed.

On the other side of the debate were those, including Frederick Douglass, who had strong ties to the Garrisonians and avoided association with political parties. In the end—against the wishes of Douglass and several others—the convention passed resolutions supporting the Liberty Party and urging Black men who lived in the six states where they were enfranchised to vote for Liberty candidates.

The Liberty Party convention’s practical purpose was to nominate a ticket for the presidential election of 1844, and the party selected—by earlier agreement—the Kentucky-born abolitionist James G. Birney for president and Thomas Morris of Ohio for vice president. Yet it was the party’s platform and proceedings that best suggested the party’s commitment to racial equality. The platform, drafted in part by Salmon Chase, began not only with a demand for the “absolute and unqualified divorce of the General Government from Slavery” but also with an argument for “the restoration of equality of rights, among men, in every State where the party exists, or may exist.”

One person who took an interest in Liberty organizing in the summer of 1845 was the twenty-nine-year-old John A. Bingham, later the author of Section 1 of the Fourteenth Amendment.

The Cincinnati Enquirer insisted that the black laws were not designed to degrade or oppress African Americans, but simply to prevent Black “settlement within our borders.” Governments had always adopted measures “for the protection of peace of the actual settlers of a State.” To that end, the paper said, Ohio could “discourage the ingress of any class or complexion of persons.” The newspaper’s assessment of which traits marked people as part of a separate “class or complexion” was not surprising. European immigrants were pouring into Ohio by the mid-1840s, but the Enquirer saw them quite differently from new arrivals of African descent. The state should welcome people who could “safely and freely assimilate, after the accidental barriers of language and habits are removed,” the paper intoned. By contrast, “Providential law” had created separate “races” that must not, and could not, commingle as equals.33 Nature had ordained that people of European descent could become Ohioans, the paper concluded, while people of African descent must remain as outsiders.

The previous few years had witnessed a spike in anti-immigrant sentiment, including mob violence and the brief rise of an anti-immigrant political party that called itself the Native American Party.

Such measures were the “legitimate offspring of that same Principle which has given birth to the Black Laws against colored Americans—a Principle which claims for the dominant class the right to legislate, not in accordance with the rules of Justice, but the dictates of Prejudice.” The Ohio Liberty Party stood against prejudice in all its forms, adamant that all men should be treated as individuals, permitted to rise or fall on their own merits.35

Black men’s right to vote was also on the Liberty Party’s agenda across the free states. Most contemporaries uncoupled the vote—which they viewed as a “political” right—from such basic “civil” rights as the right to move freely from place to place, enter into contracts, and enjoy equal protection of the laws. Some called access to the vote and office-holding a “privilege,” to emphasize that these prerogatives were available only to a certain elevated subset of people. The relatively expansive definition of citizenship that northerners had developed since the 1820s was compatible with this rather restrictive vision of the vote. White northerners regularly argued that all free, native-born people were citizens (except perhaps paupers, vagrants, and criminals), but most also insisted that only certain citizens—namely, white men—were entitled to vote. Neither Black activists nor, increasingly, women activists were willing to settle for this understanding of the franchise. Black and white women had become increasingly involved in public life in the 1820s and 1830s, working on a variety of causes including abolitionism, poor relief, prison reform, temperance, and protection for Native Americans. By the mid-1840s, women activists increasingly attacked sex-based inequality in public policy. They made some progress in persuading state legislatures to repeal married women’s property laws—laws that required women to forfeit control over their property to their husbands when they marr...

Among those that entered the Union after 1800, only Maine permitted African American men to vote. Meanwhile, older states increasingly restricted Black men’s right to vote or disenfranchised them entirely, even as they extended the vote to poor and propertyless white men who had previously been excluded.

The states of the Old Northwest were among those that had come into the Union after 1800 and had never permitted Black men to vote. Their state constitutions contained declarations of universal basic rights but limited the vote to white male “inhabitants” or “citizens.”

Moreover, two Ohio Supreme Court decisions in 1842 recognized the right to vote of a limited number of men of color. The court had previously held that, in the matter of giving testimony in court, persons who were more than one-half white should be accorded the privileges of white people. Ohioans of racially mixed background pressed the court to apply the same principle to voting, and the court obliged in two decisions—one concerning a person of mixed Black and white background, and the other a person whose mixture included Native American ancestry. In both cases, the court found that because mixed-race people who were deemed more than one-half white were viewed as white for legal purposes, they should also be treated as white for purposes of voting. As a result of the decisions, some mixed-race people could and did vote in Ohio elections.

These state-level campaigns for Black men’s enfranchisement failed everywhere except Rhode Island. There, in 1842, Whig Party leaders allied with African Americans to oppose an insurgent movement seeking to drop property requirements but reserve the vote to white men only. The conflict ended with a new state constitution that permitted Black men to vote on equal terms as white men, while all voters had to meet residency and taxpayer requirements, and naturalized citizens faced more restrictions than the native born.

The most significant school desegregation lawsuit of the period was Roberts v. City of Boston, argued in the Massachusetts Supreme Court in 1849. In that case, Benjamin Roberts, a Black printer whose parents had been part of an earlier generation of New England Black activists, sued the city of Boston for establishing segregated schools that barred his daughter from attending the school in her neighborhood. Roberts’s lawyers were Robert Morris, the state’s second African American attorney and the first to argue a case before a jury, and Charles Sumner, a white man and a rising figure in Massachusetts Whig politics. Sumner’s brief against Boston’s segregated schools encapsulated and advanced many of the arguments that civil rights activists had been making for decades. The central theme was “equality before the law.” Sumner argued that the impulse to draw racial distinctions was a residue of slavery and that it reflected a spirit of “caste” associated with monarchies and feudalism, not republics like the United States. The state constitution’s declaration that “all men are born free and equal” made racial discrimination illegal, he argued. Addressing legal questions about the appropriate scope of regulation, he argued that it might be “reasonable” for the school board to classify students by age, sex, or ability, but that it was entirely inappropriate to “brand a whole race with the stigma of inferiority and degradation, constituting them into a caste.” The Massachusetts Su...

In the lead-up to the 1848 election, the Free Soil Party emerged as the next iteration of third-party antislavery organizing. The Free Soilers brought under one umbrella longstanding Liberty Party activists, antislavery Whigs, and new recruits from the Democratic Party. The alliance, although distinct from the Liberty Party, was the fruit of years of third-party organizing.

On August 8, 1846, David Wilmot, a Democratic congressman from Pennsylvania, introduced a proposal to forbid slavery in any territory the United States might acquire during the Mexican War. Mexico itself had abolished slavery, and supporters of the Wilmot Proviso argued that the US government had no right to reinstate it. Large numbers of northern Democrats and Whigs proved willing to vote for Wilmot’s proposal, defending the principle of nonextension of slavery and denouncing the Slave Power with growing determination.

The 1848 election season also proved the final straw for the many antislavery Whigs who loathed their party’s nominee for president: slaveholder and Army General Zachary Taylor of Kentucky.

Barring African Americans from gaining a “legal settlement” was tantamount to saying they were not eligible for poor relief. Black Ohioans who had nowhere else to turn still remained vulnerable to the whims of local officials, who could, if they chose, deny them access to relief funds or even remove them from their communities. The new law’s race-neutral coda, which barred from the state people who were “likely to become” economically dependent, suggested how legislators readily moved from race-specific prohibitions—which the new legislation mostly condemned—to race-neutral ones that could be used to serve the same purposes. As in Pennsylvania in 1814, the Ohio legislature showed a kind of flexibility about categories of race and class that later served southern legislatures after the Civil War. The language of class-based discrimination could help recoup what was lost when race-based provisions were repealed.

Repeal of the black laws in Ohio, particularly the hated testimony law that so blatantly denied Black residents equal protection of the laws, served as a beacon for activists elsewhere. Ohio’s evidence of what was possible was important, as other developments in the 1850s—the Fugitive Slave Act and newly repressive state policies in Illinois and Indiana—suggested that the nation might be moving in the opposite direction.

On one side were Douglas and the Democrats, who insisted that nature had made Black people subservient to whites and that the egalitarian promises of the Declaration of Independence were intended for white people only. On the other was Lincoln and a new political party, the Republican Party, and they stood for something rather different. Building a coalition after the collapse of the Whig Party, the Republicans drew in people with a wide array of prior affiliations: radical abolitionists and advocates of racial equality who had joined the Liberty Party and other antislavery third parties; former Whigs, some of whom were colonizationists; and former Democrats, some of whom were avowed white supremacists. By the end of the 1850s, however, Republican partisans stood firmly opposed to Democrats’ brand of white supremacy and their vision for the nation. Republicans largely agreed that free African Americans were entitled to the same civil rights and perquisites of citizenship as white people were. No major political party had ever before embraced those ideals.

The Fugitive Slave Act of 1850—one of a series of measures known as the Compromise of 1850—dramatically enhanced the federal government’s authority and capacity to reach into the states. Consistent with the Prigg decision’s holding that the federal government was responsible for enforcement of the Constitution’s fugitive slave clause, the new Fugitive Slave Act established a corps of federal commissioners charged with adjudicating slaveholders’ claims. The legal procedures it established were manifestly biased in favor of slaveholders. In the summary proceedings required by the law, alleged fugitive slaves were explicitly denied the right to testify; commissioners were paid ten dollars if they ruled in favor of the slaveholder and just five dollars if they did not. The law also commanded “all good citizens” to help with enforcement and made it a federal offense to resist the law.14

The Fugitive Slave Act, passed on September 18, 1850, sent shock waves through the free states. Prominent northern Whigs and Democrats held meetings urging people to accept the new law for the sake of keeping the nation together. They hoped northerners would fall into line behind yet another compromise with the Slave Power. For Black people living in the free states, the law was an existential threat. They recognized immediately that it not only jeopardized the many runaways among them—some of whom had lived in the free states for decades—but it also made free Black people more vulnerable than ever to kidnappers abetted by unscrupulous commissioners.

Amid this national crisis, the American Colonization Society enjoyed a renaissance. Whigs in particular argued that colonization would solve a host of problems. Most prominent was Henry Clay of Kentucky, one of the founders of the ACS, the Whig Party’s standard-bearer, and the owner of dozens of enslaved people.

“Those who take counsel only of the outrages and proscriptions of which we are the victims, will lean on colonization.… Yet this is altogether the result of a partial view of our past history and present condition.” Douglass urged readers to note Black Americans’ successes and white Americans’ growing acceptance of them. “The ‘Jim Crow pew,’ and the ‘Jim Crow car,’ are becoming relics of American barbarism,” Douglass wrote. “Men are everywhere becoming ashamed of the littleness of despising a man for the complexion which God has given him.”

In party politics, the latest incarnation of the third-party antislavery movement was the Free Democrats. The coalition first convened in Pittsburgh in 1852, attempting to recapture some of the energy of the Free Soil movement of four years earlier. The coordinator of the Pittsburgh meeting was Samuel Lewis, the former Ohio Liberty Party gubernatorial candidate. Frederick Douglass was among the New York representatives and served as a secretary of the gathering. At the heart of the Free Democrats’ endeavor stood pragmatic and committed leaders of the political antislavery movement, many of whom went on to become Republicans and play prominent roles in Congress during Reconstruction.

Andrew Jackson, as a general in the War of 1812, had recognized Black soldiers as citizens and promised them “the same bounty in money and land” as white soldiers would receive. New York had recognized African Americans as state citizens in its 1821 constitution, and, in the Second Missouri Compromise of that same year, Congress had acknowledged that Black citizens of the states had rights under the privileges and immunities clause.

quo. In January 1854, Stephen Douglas created a political earthquake when he introduced the Kansas–Nebraska bill in the US Senate. After some modifications, the bill allowed settlers in the newly formed Kansas and Nebraska Territories to exercise “popular sovereignty” over slavery—that is, they could decide for themselves whether to legalize it. The provision nullified the Missouri Compromise of 1820, which provided that in Louisiana Purchase territories, slavery would exist only south of the 36°30´ parallel. Both Kansas and Nebraska were part of the Louisiana Purchase and lay north of that line.

The anti-immigrant Know Nothing Party briefly materialized, looking to mobilize anti-immigrant sentiment among former Whigs

The Republican Party wielded formidable power from the start and was destined to become an unprecedented force in American politics. The party emerged from a core of Liberty and Free Soil partisans who drew together with former Whigs and disillusioned Democrats. To build a coalition capable of attracting mass support, leading Republicans emphasized the nonextension of slavery and the opening of the West to “free labor,” themes with potential to unite great swaths of northerners. Among the Republicans of 1856 were third-party stalwarts like Salmon Chase of Ohio as well as newcomers like Abraham Lincoln of Illinois, a longstanding Whig who joined the party only that year.

The new party was led by people like Chase and William Seward of New York, men who had a history of demanding racial equality in civil and even political rights in their home states.

As David T. Disney, an Ohio Democrat and the House sponsor of the New Mexico bill, put it: “This is a Government of white men—carried on by white people, and for white people.”

Justice Taney’s Dred Scott opinion landed in a nation deeply divided along sectional and partisan lines. Frederick Douglass called it an “insult to the people of the North” and vowed to continue the struggle to “place the Federal Government … in the hands of men who will not prostrate and prostitute themselves at the feet of slavery.”

Southern slaveholders habitually pressured northerners to accept policies that secured slavery’s future and slaveholders’ power, including the 1850 Fugitive Slave Act and the admission of new slave states, insisting that the nation would come apart if northerners did not accede. Free-state residents grew increasingly unwilling to swallow such measures, particularly as it became clear that their populations were growing much more quickly than in the slave states and that a sectional party—one that drew its strength only from the free states—might be capable of winning the presidency and majorities in Congress. The Republican Party was that party.

Beginning in 1861, the State Department, under the direction of William Seward, began issuing US passports to African Americans, and congressional Republicans pushed to abolish slavery in the District of Columbia and eradicate the capital’s racially discriminatory laws. The next year, Attorney General Edward Bates of Missouri wrote an opinion on citizenship that explicitly contradicted the Dred Scott decision by concluding that free African Americans were US citizens. The Republican-dominated Congress also recognized Haiti and Liberia as independent countries, long a priority of antislavery activists. All this occurred before January 1, 1863, when President Lincoln issued the Emancipation Proclamation. In 1864, Congress barred federal courts from allowing race-based discrimination in witness testimony; in 1865, it repealed a law prohibiting Black people from carrying the US mail.2

Those customarily called “radical Republicans”—with strongest ties to the antislavery movement—were most inclined to envision equality expansively, while others were more doubtful.

THE STATE OF SOUTH CAROLINA, long the locus of southern separatism, declared itself out of the Union on December 20, 1860, and by the time Lincoln delivered his inaugural address on March 4, 1861, six additional states had joined the movement to create a separate nation committed to the perpetuation of slavery. In mid-April, a crisis at Fort Sumter in Charleston, South Carolina, marked the formal beginning of military hostilities. The Lincoln administration had refused to surrender the US forts in Charleston Harbor but now faced the question of how to deliver rations to the soldiers stationed there. Lincoln dispatched ships carrying provisions, but just as they arrived, Confederate forces attacked the fort. After a day and a half of bombardment, the US soldiers surrendered. Two days later, on April 15, Lincoln called up seventy-five thousand state militiamen, signaling that the government would not passively accept this outcome.

In attacking law enforcement practices in the capital, men such as Senators Wilson and Hale were also trying to push the Lincoln administration. Some Republicans were frustrated with Lincoln that fall of 1861 for his reluctance to attack slavery head-on. They were particularly incensed by Lincoln’s reversal of Major General John C. Frémont’s order to free the slaves of rebels in his Missouri jurisdiction.

The process of repealing racist laws in the District began with a clause in the Emancipation Act itself. In a section suggested by Senator Charles Sumner of Massachusetts, the act instructed the commission charged with assessing the value of slaves to receive testimony “without the exclusion of any witness on account of color.” Congress soon made a more direct thrust at repealing the capital’s black codes. A new law, proposed by Senator Wilson and signed by Lincoln on May 22, 1862, established a system of public schools for Black children and provided that “all persons of color … shall be subject and amenable to the same laws and ordinances to which free white persons are.” Then, at Sumner’s behest, a separate measure in July 1862 declared that, “in all judicial proceedings in the District of Columbia there shall be no exclusion of any witness on account of color.”

Finally answering Chase at the end of November 1862, Bates argued that free African Americans were US citizens. From the nation’s beginning, he insisted, American practice had been to assume that any person born in the United States was a citizen of the United States. Attempts to claim that free African Americans were not citizens by birthright, he said, were specious departures from that tradition.

Bates’s opinion as “another sign of progress” and speculated that, “under the principles and acts of an Administration like the present, there will be no more refusals of passports to ‘free Americans of African descent’ … and the bitter persecutions of colored seamen in Southern ports would be likely to cease.”

Second, Republicans understood that the abolition of slavery—prospective in 1863 and real by the end of 1865—meant that the southern states, if readmitted to the Union without Black men’s enfranchisement, could emerge more powerful than ever before in the US government. This was because the end of slavery meant the end of the Constitution’s three-fifths clause. While slavery existed, enslaved people had been counted as three-fifths of a person for purposes of enumeration. With slavery abolished, freedpeople would be counted whole, thus increasing the size of the enumerated population in the southern states. If white southerners denied Black men the equal right to vote, not only would they dominate their own states’ politics, but their priorities would be more heavily weighted than ever in Congress and the electoral college.

Black Washingtonians observed the same laws as others, were subject to the same punishments, and had no more criminals or paupers among them than “any other class.” They were “intelligent enough to be industrious, to have accumulated property, and to build and sustain Churches,” and they were “educating their children without the aid of any school fund.” Moreover, their “loyalty has never been questioned,” and “in all their Country’s trials they have responded voluntarily and with alacrity, pay or no pay, bounty or no bounty, promotion or no promotion.”

Republican Edgar Cowan of Pennsylvania moved to insert the word white into the description of voter qualifications, “so as to confine the right of voting in Washington to white male citizens.” Republican moderates suggested a property requirement for all Washington voters, arguing that such a law would avoid both racial discrimination and the enfranchisement of thousands of propertyless freedmen. But the prospect of disenfranchising propertyless white men who already enjoyed the right to vote also elicited strong objections. Sumner proposed a policy that explicitly forbade racial discrimination in voting. Citing reports of “shocking” violence perpetrated against African Americans by white southerners, Sumner insisted that Congress’s policy toward Washington ought to “set an example of justice and humanity.” With Republicans unable to agree on a change, voter qualifications in Washington remained the same: white male citizens alone would be eligible to vote.

At the end of April 1864, a delegation of five Black men from North Carolina visited Lincoln and asked him to make sure, as he encouraged the formation of loyal state governments in the Confederacy, that Black men would “exercise the right of suffrage.”

Similarly, once under Republican control, the legislatures of Oregon and California repealed laws that barred Black testimony in cases involving whites. (Oregon made witness qualifications race-neutral. California, however, retained its law barring Indians from testifying in cases involving whites and explicitly banned Chinese testimony in such cases.)

At the Syracuse convention, Black women shared the dais with Black men.

William Lloyd Garrison, storied leader of the organization, announced that it was time to go their separate ways. “My vocation, as an Abolitionist, thank God, is ended.” Armed conflict had taken the nation to a place few could have imagined four years earlier. The war had set in motion the destruction of slavery, and Congress had finished the task by passing a constitutional amendment that outlawed the institution everywhere. Their ultimate goal achieved, Garrison and many of his allies believed it was time to turn their attention elsewhere.1 Frederick Douglass did not share that view. Douglass had not been close to Garrison since the early 1850s, when Douglass embraced the political antislavery movement. Now, Douglass argued with Garrison again, insisting that abolitionists must work for the repeal of the racist laws that had long oppressed free African Americans, North and South.

Recalling Samuel Hoar’s expulsion from Charleston, he argued that the Constitution’s privileges and immunities clause had never worked as it was supposed to. There was “something down in South Carolina higher than Constitutional provisions,” he said.3 And so the abolitionists’ work was not complete. They had to keep fighting for the repeal of racist laws, for the protection of the privileges and immunities of citizens, and ultimately for Black men’s right to vote.

When congressional Republicans turned their attention toward policymaking for the states, however, they confronted directly the nation’s federal structure and Americans’ longstanding deference to state power. As they sought to forge a policy that would grant Congress unprecedented power to protect individual rights in the states, they had to tread carefully, lest they lose members of their coalition and—come the fall of 1866—face defeat in midterm elections. 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.