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

by Kate Masur

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 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.”

During the summer and fall of 1865, white southerners pushed to organize their state governments and send representatives to Congress. They believed that the sooner they did so, the sooner the president would withdraw the military and they could resume the usual authority enjoyed by states in the federal system. Many high-ranking former Confederates, having received individual pardons from the president, reentered public life and were voted into office. Newly constituted legislatures abolished slavery, as Johnson had urged, but they went out of their way to deny that the Thirteenth Amendment gave Congress any power over civil rights or voting rights in the states. They also adopted racially restrictive laws that expressed their desire for white supremacy in every facet of life.10 These were the southern “black codes” so notorious in American history.

Theories varied as to the status of those states in relation to the federal government, but most northerners agreed that federal officials (perhaps the president, perhaps Congress) were entitled to dictate terms because the Confederacy had been defeated in war. Freedmen’s Bureau officials pushed state governments to repeal racist laws and, in particular, to accord African Americans the equal right to testify in court. At times, Johnson himself got involved, as when he informed the Mississippi governor that he would withdraw the army only when the state adopted measures protecting “all freedmen, or freemen in persons and property, without regard to Color.” Even as Johnson threatened to continue the military occupation, however, he instructed the army to demobilize rapidly. And as growing numbers of US soldiers were discharged in the second half of 1865, white southerners stepped up their violent attacks on freedpeople and white Unionists, increasingly confident that they would be permitted to define the post-slavery order for themselves.12

The Thirteenth Amendment, if ratified, would not touch “the laws respecting free people of color” that predated the war and were “presumed to have lost none of their vitality.” A statewide Black convention that met in August 1865 in Alexandria, Virginia, urged Congress to continue military occupation “until you have so amended the Federal Constitution that it will prohibit the States from making any distinction between citizens on account of race or color,” including in the right to vote. A South Carolina group protested to Congress “against any code of black laws the Legislature of this State may enact.”13

CONGRESSIONAL REPUBLICANS GREW increasingly frustrated as they observed events in the former Confederacy during the summer and fall of 1865. They were dismayed by President Johnson’s generous pardons of former Confederates and reports of unrepentant white southerners and gruesome violence against freedpeople and white Unionists. Many also believed that Congress, not the president, was entitled to decide how and when the rebel states would return to the Union. Republican politicians of that era are often categorized as conservatives, moderates, or radicals, depending on their views on racial equality, with “radicals”—people like Thaddeus Stevens and Charles Sumner—most strongly in favor of immediate enfranchisement for Black men.

As the opening of the Thirty-Ninth Congress approached, party leadership took the dramatic step of agreeing that neither house of Congress would admit representatives sent by the state governments established under Johnson’s policy. The goal was to stymie the process of restoring the rebel states and, in doing so, give Congress a chance to develop a reconstruction program of its own. Republican leaders also created a Joint Committee on Reconstruction to take testimony and draft policy. The committee, dominated by ideological moderates like William Pitt Fessenden but also including radicals like Thaddeus Stevens, eventually wrote the Fourteenth Amendment.

By the time Congress convened on December 4, 1865, South Carolina had joined Mississippi in adopting new laws that explicitly denied African Americans basic protections. Congressional Republicans were outraged by white southerners’ lawlessness and well understood that African Americans’ subordinate status in state law heightened their vulnerability. President Johnson himself, addressing Congress on the first day of the session, seemed to sanction the idea that Congress should take steps to ensure freedpeople’s protection. Voting was a matter for the states, he said, but it was “equally clear that good faith requires the security of the freedmen in their liberty and their property, their right to labor, and their right to claim the just return of their labor.”

With the Civil Rights Bill, Trumbull was looking to resolve questions that were pressing in the moment but that had also bedeviled civil rights activists in the free states for decades. His initial draft of the bill did not mention citizenship, but just before introducing it in the Senate, he added a provision designed to settle the longstanding question of whether free African Americans were citizens of the United States. The bill stated: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States without distinction of color.”19 The only groups of people excluded from birthright citizenship under this measure were children of foreign diplomats and Native Americans living on tribal land. With this provision in federal law, there could no longer be any doubt about the citizenship status of native-born African Americans.

Trumbull’s Civil Rights Bill contained nine clauses concerning enforcement, an indication of the thoroughness with which he and the Senate Judiciary Committee approached the challenges Congress faced in trying to nationalize the principle of racial equality before the law. It was no small thing to devise a system by which matters traditionally left to the states—such as who could testify in court, or which criminal penalties were associated with which crimes—were made issues of federal concern. Rather than demand directly that states repeal racially discriminatory laws—which would heighten the infringement on state sovereignty as conventionally understood—the Civil Rights Bill made it a crime to enforce such laws. State officials who enforced discriminatory laws would be subject to fines or jail time, and individuals who faced discrimination in local or state courts would be permitted to move their cases into federal court. In provisions modeled on the 1850 Fugitive Slave Act, the bill established federal marshals to oversee enforcement and, when needed, bring charges against state officials who violated the law. As one contemporary writer explained, it was “more than poetic justice” that the Civil Rights Bill used “the very means once employed to repress and crush the negro for his defense and elevation.”

Republicans supported them, and viewing this as lobbying in another form, they condemned the president’s views as “entirely unsound and prejudicial.” They blamed “the cunning of the slave masters” for hostility between enslaved people and poor white southerners.

Johnson for his signature.36 Republican efforts to moderate the Civil Rights Act evidently mattered little to President Johnson, who issued a stinging veto on March 27. Sounding much like Stephen Douglas in the 1850s, and echoing Democrats and conservative Republicans in Congress, Johnson spoke for the many Americans who believed that states were entitled to discriminate based on race, and he rejected Republican efforts to nationalize the principle of racial equality in civil rights. The president also denounced the act’s recognition of African American citizenship, arguing that people who had just emerged from slavery ought to go through a probationary period before becoming citizens. He condemned Congress’s incursion into what he believed was the rightful domain of the states and their police powers. “Every subject embraced in the enumeration of rights contained in this bill has been considered as exclusively belonging to the States,” he argued. “They all relate to the internal police and economy of the respective States” and were “matters which in each State concern the domestic condition of its people.” If Congress could “repeal all State laws discriminating between whites and blacks in the subjects covered by this bill,” the president warned, then it could do similarly when it came to suffrage, landholding, and other matters. The law would “sap and destroy our federative system of limited powers and break down the barriers which preserve the rights of the States,” he ...

Many Republicans, including Lyman Trumbull himself, had expected the president to approve the Civil Rights Act. Supporting the measure might have helped Johnson isolate those, including Sumner and Stevens, who had made no pretext of cooperating with him and demanded maximal congressional control over the rebel states. But Johnson had other ideas. Looking ahead to the midterm elections of 1866, the president envisioned building a new coalition of Democrats and conservative Republicans, and he believed he did not need the majority of the congressional Republicans to do this. Yet Johnson’s vetoes only served to drive the Republicans into even tighter coalition. Northern Republican newspapers indicated that the public was behind Congress and the Civil Rights Act. After a lengthy debate and a dramatic defense of the bill by Trumbull, the Senate overrode the president’s veto on April 6. The House followed suit three days later and the bill became law on April 9, 1866, the first anniversary of Robert E. Lee’s surrender at Appomattox.

At the same time, the Civil Rights Act was not a blanket statement of universal equality. Congress had prioritized the rights of free African Americans. In altering the bill’s language from inhabitants to citizens, Congress declined to outlaw discrimination against aliens—particularly the Chinese—or against Native Americans, most of whom the government did not consider citizens. Moreover, by clarifying that it was prohibiting discrimination based on “race and color” alone, Congress indicated that it was not condemning other kinds of inequality, particularly that of sex but also that of economic status.

Most Republicans did in fact want the guarantee of racial equality in civil rights to extend to everyone, regardless of citizenship status. Responding in part to pressure from San Francisco’s Chinese community, the revised civil rights statute that Congress passed in 1870 promised racial equality to all persons living under US jurisdiction, rather than to all citizens, as the 1866 compromise had required.39

In many places, whites seethed at evidence that African Americans understood the Civil Rights Act and would seek its enforcement. In Norfolk, a mass celebration of the new law touched off a riot in which gray-clad ex-Confederates attacked US forces and several people died.

Newspapers called the Civil Rights Act an example of “Jacobin misrule,” and a step “toward extinguishing the last remnant of American freedom.”

One of the Fourteenth Amendment’s most important and most lasting innovations was what lawyers and constitutional scholars call its “state action” language. In its final form, the amendment placed direct restrictions on the states, beginning with the instruction, “No state shall.” It barred states from abridging the privileges or immunities of citizens and from depriving persons of equal protection and due process of law.

In addition, it empowered Congress to secure to persons “equal protection” in the three basic rights recognized in the amendment: life, liberty, and property.

Giles Hotchkiss, another New York Republican, offered a substantive criticism of Bingham’s formulation. The language left too much to the “caprice of Congress,” Hotchkiss argued. “We may pass laws here to-day, and the next Congress may wipe them out. Where is your guarantee then?” Instead, Hotchkiss suggested, “Why not provide that no State shall discriminate against any class of its citizens … [?]” An explicit limit on the states would ensure that, unlike in Bingham’s initial proposal, the amendment would not become meaningless if “rebels” and “their northern sympathizers” took charge of Congress. Although Hotchkiss did not say it explicitly, his proposal also implied that if Congress refused to act, at least aggrieved parties might have recourse to federal court.

To the great frustration of future judges and historians, the committee did not preserve the records of its discussions, so it is not known exactly how the committee arrived at this approach or how it chose the language of each clause.

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Moreover, instead of echoing the original clause’s emphasis on state citizenship, the amendment barred abridgment of the “privileges or immunities of citizens of the United States.” It emphasized national citizenship in keeping with the Republicans’ longstanding vision of federal protection for basic civil rights.

In February 1864, Charles Sumner had proposed a Thirteenth Amendment that declared: “All persons are equal before the law, so that no person can hold another as a slave.” Jacob Howard of Michigan had worried that such phrasing would make “a woman … equal to a man,” “a woman … as free as a man.” It would mean that “a wife would be equal to her husband and as free as her husband before the law.” The Senate had shelved Sumner’s proposal in favor of a Thirteenth Amendment that said nothing specific about individual rights.

In 1866, some had cautioned that the Civil Rights Act would incidentally outlaw sex-based discrimination. Even after the House added language clarifying that the act concerned only racial discrimination, some still worried that the act would invalidate laws barring interracial marriage.

In 1870, at Charles Sumner’s urging, 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

Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes.

They insisted that Black men’s enfranchisement was right in principle, but they also pointed out that if Congress did nothing to ensure that Black men could vote, the rebel states would eventually return to the Union stronger than ever. While slavery persisted, enslaved people had counted as three-fifths of a person for purposes of deciding how many congressmen and electoral votes each state was entitled to. Now that all were free, each African American would count fully in the population. If southern state governments did not permit Black men to vote, southern whites—many of them of dubious loyalty and dubious intentions—would exercise more proportional power than before. This prospect provided congressional Republicans a strong incentive for finding a way to enfranchise Black men, at least in the former Confederacy.

It declared that representatives would now be apportioned based on the “whole number of persons in each State,” but that if a state barred male citizens over age twenty-one from voting (for any reason other than having participated in the rebellion or having been convicted of a crime), the state’s representation in Congress would be proportionately reduced.

Still, many were frustrated by the amendment’s failure to address voting more squarely. Charles Sumner was so disgusted that he voted against it. The measure also infuriated women suffragists, who lamented that by including the word male, the amendment associated the franchise with manhood and diminished women’s claims to political equality.

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.

Republican Party, which entered national politics in 1856,

With the Fourteenth Amendment, Republicans sought to build on that promise by clarifying that African Americans were citizens, elevating federal citizenship over state citizenship, and promising that the US government would protect all citizens in the basic civil rights long associated with that status.

The trend began with the Indiana Supreme Court, which upheld a state statute barring interracial marriage in the 1871 case of State v. Gibson. The court insisted that new federal measures had no bearing on a state’s power to regulate contracts such as marriage. Marriage was “essential to the peace, happiness, and well-being of society,” the court said, and the state’s authority to regulate it continued unimpeded. 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.

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.”

As the Black activist Charles Lenox Remond complained as he testified against racial discrimination on Massachusetts railroads in 1842: “Color is made to obscure the brightest endowments, to degrade the fairest character, and to check the highest and most praiseworthy aspirations.”9 Antiblack laws construed all Black people as dangerous, threatening, or criminal. While white people benefited from the protection of the laws, Black people were presumed guilty simply by virtue of being Black.

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.

In Ohio in 1849, the assembly that repealed most of the black laws adopted a new statute designed to reduce migration by people who were “likely to become chargeable as paupers in any township … or to become vagrants.”

A similar fungibility of race and class continued after the Civil War. The idea persisted in many quarters that poor people who were transient or appeared not to be working posed a threat to public peace and good order, and that such people were not entitled to the same basic rights as others. Freedmen’s Bureau agents and other northerners in the post–Civil War South insisted on racial equality before the law but felt entirely free to crack down on “vagrancy” and “vagabondage.” A northern clergyman in Memphis, for instance, vigorously condemned overtly racist policies but urged officials to restrict the liberty of known vagrants and, in particular, to pay attention to vagrancy and pauperism among whites.

Strict antivagrancy laws often remained on the books but went unenforced while Republicans were in charge of southern state governments. Democrats, on regaining control, enforced them with new stringency and adopted even more draconian

Governments in northern states were not much more likely to feel constrained by new federal civil rights policies when making policy toward the poor. Particularly during the global economic crisis that began in 1873, states and localities intensified measures that targeted the transient poor, with little respect for ideals of due process or equal protection of the laws. Alleged vagrants, paupers, and beggars could be picked up and convicted of crimes without a formal hearing, forced to labor, or removed involuntarily from a jurisdiction.

In fact, the Supreme Court did not recognize poor people’s right to move from state to state until 1941.

Still, African American activists and their white allies wanted to see a federal ban. Their strongest ally in Congress was Massachusetts Senator Charles Sumner, who in the early 1870s fought for a federal law that would bar discrimination by railroads, steamboats, public conveyances, hotels, restaurants, licensed theaters, public schools, juries, churches, and cemetery associations. The measure was controversial, including among Republicans. Congress finally passed Sumner’s law in 1875, after the senator had died and with the sections barring discrimination in schools, churches, and cemeteries removed.

In 1947, the President’s Committee on Civil Rights, commissioned by Harry S. Truman, delivered a report outlining the many ways in which the United States was failing to live up to the Fourteenth Amendment’s promises of equal protection and due process of law for all people. Recalling the first civil rights movement, the committee emphasized the still-unmet goal of securing for “each individual” the right “to physical freedom, to security against illegal violence, and to fair, orderly legal process.”

It may be true that morality cannot be legislated, but behavior can be regulated. It may be true that the law cannot make a man love me, but it can keep him from lynching me.… It may be true that the law cannot change the heart, but it can restrain the heartless, and this is what we often do and we have to do in society through legislation.

Much remains to be done. Yet the first civil rights movement can teach us a few important things about American history, politics, and law, dating back to the earliest years of the republic. The men and women of that movement looked at their flawed country and demanded something better. They unflinchingly attacked the enduring legacies of slavery in American life. They deplored racism in public policy. They sought due process and equal protection for everyone, everywhere. Members of the coalition did not always agree with one another, and they had their blind spots. Some were in the radical vanguard and others proceeded with great caution. Still, the agitators, petitioners, and politicians of the first civil rights movement built a coalition that pushed the principle of racial equality into the center of American life, demanding policy changes that would edge the nation closer to its most egalitarian promises. When they prevailed, it was often by slim margins. When they failed, they kept trying. When the Civil War provided an opening, they propelled their quest for justice onto the national stage and into the US Constitution. We are fortunate that they did.