Reconstructing America

Racism is a confounding subject. Every single human being, in the history of human beings, has had a personal bias toward their own. This should not be a shocker. It’s biological to protect your own from those that aren’t your own. Compounding that urge is the natural response of fear to things that are beyond our experience. But we all pretend like we don’t have these tendencies, for varying reasons. Some of us, typically those at an advantage because of race, are simply unaware, because we’ve never known what we haven’t known. Some of us are at a disadvantage because of race, which engenders an equal and opposite reaction to the biases of those in power. And some of us are fully aware and even privately proud of their racist tendencies, yet inexplicably find it worthwhile to pretend and proclaim they are not. The degree to which this last category will push their agenda while simultaneously not admitting quite simply that they are racist is staggering. Nowhere has this been more evident than in the evolution of the American Constitution, and how we’ve adhered to it (or not) over time.

The 13th, 14th, and 15th Amendments to our Constitution, centerpieces to what we’ve called the Era of Reconstruction, composed what would today be called a trilogy: a series of changes to the Constitution that facilitated equal rights for all races. “Facilitated” is the key word here. Resistance and loopholes proliferated before the ink was dry, and a century and a half later, it’s not clear how much progress we have really made, particularly with respect to the underlying biases that fueled the problem in the first place.

In the days defining America’s birth, racism (though not called out as such) was primarily discussed in the context of slavery. Slavery is one of those things that makes you wonder whether we’re worthy of being the dominant species on this planet. Human civilization, by various measures, has been in place on planet Earth for thousands of years. Yet a nation that considers itself at the forefront of everything didn’t find a way to constitutionally ban slavery until nearly a century into its existence, and in the last few percent of the time that our species has been “civilized”. By that time, one eighth of the U.S. population in 1860 were in chains. Even after Reconstruction, we stood and watched as racial injustices were perpetrated in other nations – ranging from restrictions on human rights all the way through genocide.

Back at the defining of our nation, our inability to resolve conflicts over slavery led one of the more bizarre deals in our history: the Three Fifths Compromise in the original Constitution, which effectively counted three out of every five slaves as a person for the purposes of determining population (and hence representation in Congress). So on the one hand, you had the North, who generally were more opposed to slavery, but also didn’t the South to have more representation in Congress; on the other hand, you had the South, who didn’t want slaves to have any rights, but also didn’t want to miss out on the head-counting. Think about that: our revered Constitution explicitly prescribed that slaves were less than people. Other “compromises” were struck over the years between the Revolutionary and Civil Wars, generally coinciding with the admission of new states to the Union, and whether these were free states or slave states.

Many people are aware of what Abraham Lincoln did at the beginning of 1863, when he invoked presidential war powers to issue the Emancipation Proclamation. But this act only freed slaves in the states that had seceded from the Union, and since they had seceded, it really didn’t free them in practice. Lincoln tried other means, which began the concept of Reconstruction, but ultimately it became clear that a Constitutional Amendment would be needed to resolve the issue. The tale of how the Amendment obtained approval in Congress is better told in many better places and media than here, but it did happen before Lincoln’s tragic assassination in 1865. His successor, Andrew Johnson, finished the work of convincing the necessary number of states to ratify, including a few that had seceded, but those states declared in the same breath that the Amendment didn’t authorize Congress to bestow any rights to former slaves, which means even at ratification it had dull teeth at best. For what it was worth, in December of 1865, the 13th Amendment became a part of our Constitution:

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

A few things to note about the 13th Amendment:

  1. It doesn’t just talk about slavery – but also about involuntary servitude (making it a more general statement about unfair labor practices) and prisoners (who don’t benefit from it once convicted).
  2. It has that second section one so often sees in Constitutional Amendments: “Congress shall have power to enforce this article by appropriate legislation”. Problem is, if Congress doesn’t do that, then the effects of the other sections may not amount to much in the real world.
  3. Following on (2), the South quickly moved to create a world that looked very much like the previous one. Slavery itself was essentially continued under a different guise, and laws were written to criminalize any attempt to change that societal imbalance. South Carolina’s Black Codes were a not-so-shining example.

To be fair, Congress did try to act, passing a Civil Rights Act in 1866 and other measures to counteract the Black Codes. But there was always another countermeasure. Peonage, for example – whereby debt was used to perpetuate servitude – and this was very easy to impose on a population that had never owned any substantial property. Just as the 13th Amendment became a clear necessity during the Lincoln administration, the 14th Amendment became a clear necessity in the ensuing couple of years, and few Amendments have had more far-reaching implications, including and beyond the issues it was immediately targeting. In an attempt to put the hammer down on slavery and its immediate successors, the 14th Amendment dramatically impacted the power of the states. Most of that impact came from Section 1:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. 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.

That’s worth reading many times over. It’s quite possibly the most concise and emphatic expression of human rights in the United States since the opening of the Declaration of Independence. One should always cross check against Wikipedia (or any other source, Internet or otherwise), but it does a nice job of summarizing the impact of this section on our country: “The amendment, particularly its first section, is one of the most litigated parts of the Constitution, forming the basis for landmark decisions such as Brown v. Board of Education (1954) regarding racial segregation, Roe v. Wade (1973) regarding abortion, Bush v. Gore (2000) regarding the 2000 presidential election, and Obergefell v. Hodges (2015) regarding same-sex marriage.”

The dull teeth of the 13th Amendment, combined with the lukewarm efforts of Andrew Johnson, led Congress to determine they needed to sharpen those teeth, and this is what precipitated the development of the 14th Amendment. After numerous drafts and debates, it passed Congress in June of 1866. Ratification proved difficult as one might expect, although the time frame of its resolution was surprisingly quick. The Southern states, of course, initially refused, and Ohio and New Jersey compounded matters by rescinding their original ratification. But ultimately Congress passed a law that hinged representation on Congress to the ratification of the 14th Amendment, which forced the hands of the Southern states, and full ratification was pronounced on July 28, 1968. I could go on and on but I’m already exceeding your data usage limit with this blog post, so I beseech you to research the 14th Amendment on your own. “Profound” is an overused word, but the impacts of this Amendment are truly so. For completeness, here are the other sections:

Section 2. Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any State, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may, by a vote of two-thirds of each House, remove such disability.

Section 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrection or rebellion against the United States, or any claim for the loss or emancipation of any slave; but all such debts, obligations and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

While the 14th Amendment was pivotal to human rights in America, and has been used as the basis for voting rights as well, it did not directly tackle the rights of black Americans to vote. The 15th Amendment, the final installment in the “Reconstruction Trilogy”, took its best shot at that gap:

The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.

The original Constitution doesn’t say much about who *can* vote. The 14th Amendment was our best shot at doing something along those lines. But the 15th Amendment, like several others we’ve visited in this series of blog posts, did its part in specifying who “couldn’t not” vote. Unfortunately, the South once again did its best to circumvent the Amendment, and the Federal Government did little to alter the status quo for many ensuing decades.

The Reconstruction Amendments continued to sport relatively dull teeth until 1965, when Congress enacted the Voting Rights Act, which finally implemented the prosaic “and Congress can pass some laws to make sure this happens” sections of these Amendments. The impacts were immediate and far-reaching, but as a testament to the notion that we really haven’t solved the underlying biases that necessitate even having such Amendments, the Voting Rights Act continues to require its own amendments to ensure it remains fully in effect. The most recent was in 2006, which renews the subscription for the Act’s special provisions to 2031. How enlightened will we be in 2031? It’s not even clear to me in which direction we are trending. Like most construction projects, Reconstruction has no end in sight.

Eternal vigilance.

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