Despite this expansive wording, the Emancipation Proclamation was limited in many ways. First, it would be seen as a temporary war measure, since it was solely based on Lincoln's war powers. Furthermore, the Proclamation did not free any slaves in the border states nor itself make slavery illegal. It applied only to states that had seceded from the Union, leaving slavery untouched in the loyal border states. It also expressly exempted parts of the Confederacy that had already come under Northern control. Most important, the freedom it promised depended upon Union military victory. What it did, however, was to invigorate the abolitionist sentiment in the north, and more importantly, it changed the character of the war. The war went from being a war to re-unite and save the Union to a war to free the slaves. After Lincoln delivered the Proclamation, every advance of federal troops expanded the domain of freedom. Moreover, the Proclamation announced the acceptance of black men into the Union Army and Navy, enabling the liberated to become liberators. By the end of the war, approximately 186,000 black soldiers and sailors had fought for the Union and for freedom. But how to overcome the limitations of the Emancipation Proclamation and memorialize the intent and spirit it represented?
A constitutional amendment would have to be the answer.
Even before the war had come to an end, in April 1865, an amendment to the US Constitution was drafted to abolish slavery and a vote was taken in Congress. It would be the 13th Amendment, which provides: "Neither slavery nor involuntary servitude shall exist within the United States, or any place subject to their jurisdiction." The Senate proposed the amendment in February of 1864 and passed it two months later. But the House refused to pass it. President Lincoln then got involved. If the House wouldn't pass it, then he would make sure the amendment was added to the Republican Party platform for the upcoming Presidential election. His efforts must have worked because the House passed the joint resolution (the 13th Amendment) on January 31, 1865, by a vote of 119 to 56. It was a very partisan amendment, with 100% of House republicans voting in favor and only 23% of democrats supporting it. It was then sent to the states for adoption. Note that the Civil War had not yet been won at this point. The bloody war would not end until April 9, when the great General Robert E. Lee surrendered the Army of Northern Virginia (the confederate army) to the victorious General Ulysses S. Grant at Appomattox, Virginia.
The 13th Amendment was finally ratified on December 6, 1865 when 27 out of the 36 states ratified it (= 3/4 of the states, as required by Article V of the Constitution). Unfortunately, Lincoln would not live to see the day when slavery would be officially abolished in the country for he was assassinated on Good Friday, April 14.
When the war ended, and the Confederate States of America were defeated, plans had to be made for the individual southern states to re-enter the Union. Conditions had to be required. And as it turned out, some degree of punishment would be inflicted as well. While the 13th Amendment received the approval of 3/4 of the states and became effective as part of the Constitution, many of the southern states were still bitter and not willing to recognize blacks as anything other than slaves or an inferior race of people. Slavery may have been abolished by the Constitution but it didn't mean that they, as states, had to treat them any differently. Blacks may have been free, but the states weren't about to permit them to be citizens. And so Congress came up with the Civil Rights Act.
That was still the year of 1865.
In 1865, Republican Senator Lyman Trumbull (of Illinois) proposed the Civil Rights Act. (He was also the co- drafter of the 13th Amendment). The Civil Rights Act declared that people born in the United States and not subject to any foreign power are entitled to be citizens, without regard to race, color, or previous condition of slavery or involuntary servitude. It also said that any citizen has the same right as a white citizen to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. The Civil Rights Act passed both houses of Congress, but President Andrew Johnson vetoed it - in 1865 and then again in 1866. But in 1866, a 2/3 majority in each house overcame the veto and the bill became law (hence, the official name of the legislation - the Civil Rights Act of 1866). But that victory didn't come without a fight by the Democrats. Democrats tried to stall the passing of this legislation by declaring it was unconstitutional, but Trumball, an attorney and former chief justice of the Illinois Supreme Court, countered by arguing that Congress had power to enact it in order to eliminate a discriminatory "badge of servitude" prohibited by the Thirteenth Amendment. [In the 20th century, the US Supreme Court would ultimately adopt Trumbull's rationale in finding congressional power to ban racial discrimination by states and by private parties].
To eliminate any doubt about its constitutionality and to make sure that no subsequent Congress would later repeal or alter its core provisions, Republican members of Congress decided to memorialize the Civil Rights Act in a constitutional amendment. The Civil Rights Act of 1866 would become our 14th Amendment. Republican members of the US Congress took advantage of the fact that the southern states were not yet restored to the Union. In order to be sure that they had the required majority of Senators to pass the amendment (2/3, as required by Article V of the Constitution), they pulled a fast one. They simply refused to seat Senators from the southern states.
The 14th Amendment declares that free slaves are citizens - not only of the United States but also of the state in which they reside - and as such are entitled to all the privileges and immunities of citizenship. ("All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state they reside.") It also provides that freed slaves cannot be deprived of Life, Liberty, and Property without Due Process and that they are entitled to the Equal Protection of the laws. The Citizenship Clause and the Equal Protection Clause of the 14th Amendment paralleled the "citizenship" language and the "nondiscrimination" language, respectively, in the Civil Rights Act of 1866. (They would not be re-admitted until 1868- 1870).
Specifically, the 14th Amendment reads: 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."
The Citizenship Clause
provides a broad definition of citizenship that expressly overruled the infamous Dred Scott decision of 1857, which declared that all blacks - slaves as well as free - were not and could never become citizens of the United States. The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without certain steps being taken to ensure fairness. This clause has been used to make most of the Bill of Rights applicable to the states, as well as to recognize substantive and procedural rights. And the Equal Protection Clause requires each state to provide equal protection under the law to all people within its jurisdiction. This clause was the basis for the Supreme Court's decision in Brown v. Board of Education (1954), which precipitated the dismantling of racial segregation in our schools.
The 14th Amendment was proposed on June 13, 1866, as House Joint Resolution 127, and was then immediately sent to the states for ratification. At that time, the eleven defeated confederate states were not yet re-admitted to the Union. Nonetheless, as with the 13th Amendment, they were asked to ratify the 14th Amendment, which all refused to do - except Tennessee, which adopted it immediately and was therefore permitted re-admission. It was re-admitted on July 24, 1866. (Tennessee had been conflicted even from the very beginning as to whether it wanted to secede or not. In fact, after the state legislature voted to secede from the Union, a large portion of the population tried to secede from Tennessee and remain with the Union). In addition, the 14th Amendment was decidedly rejected by the border states as well. By March 1867, twenty states had ratified and thirteen had rejected the proposed amendment. With the southern and border states refusing to adopt the 14th Amendment, it failed to secure the 3/4 of states necessary for ratification as required under Article V. And so the amendment failed to pass.
After learning that the proposed amendment's failure, the Republicans (specifically referred to as the "Radical Republicans") in Congress responded by passing the Reconstruction Act of March 2, 1867, which essentially put the south under martial law and restricted their abilities to govern themselves and to participate in the federal government. Under the congressional plan, the former confederacy (minus Tennessee) was broken up into five military districts. Each district was under the control of federal troops and headed by a particular northern Civil War general. This was the notorious Reconstruction Era, which would have longstanding impressions on the southern states. The purpose of Reconstruction, as was made clear by the Reconstruction Act, was to punish the South. The law set out to determine the conditions under which the southern states would be permitted to return to the Union, how they would be re-seated in government, how they would govern themselves, what would become of their "rebellious" leaders, and how they would treat their freedmen. All this would be determined while the states were under martial law and under the scrutiny of the federal government. Specifically, in order to be re-admitted to the Union , the states would have to rewrite their constitutions to disqualify former Confederate officials from office and guarantee black males the right to vote. Most importantly, the states would have to ratify the 14th Amendment. Once these conditions were met and military rule was ended, then could the former confederate states be re-admitted to the Union. As one Republican (northern) representative described the situation: "The people of the South have rejected the constitutional amendment and therefore we will march upon them and force them to adopt it at the point of the bayonet."
By July 9, 1868, with ratification by North Carolina, Louisiana, and then South Carolina, enough states had ratified the 14th Amendment so that it was certified to become part of the US Constitution. It would not be until 1870 that the last southern state, Georgia, would be re-admitted and the Union would be reconstituted. [4]
Let's return again to the year 1865. In that year, the Republican Congress created the Bureau of Refugees, Freedman, and Abandoned Lands (aka, "Freedman's Bureau") to help freed slaves transition from bondage to freedom. An Inquiry Commission was tasked with assessing the needs of Freedman to justify whether such a Bureau was worthwhile, and in their Final Report, the Commission concluded:
"Let us beware the temptation to treat the colored people with less than even justice, because they have been, and still are, lowly and feeble. Let us bear in mind that, with governments as with individuals, the crucial test of civilization and sense of justice is their treatment of the weak and the dependent.
God is offering to us an opportunity of atoning, in some measure, to the African for our former complicity in his wrongs. For our own sakes, as well as for his, let it not be lost. As we would that He should be to us and to our children, so let us be to those whose dearest interests are, by His providence, committed for the time to our charge.
As regards the question, What amount of aid and interference is necessary or desirable to enable the freedmen to tide over the stormy transition from slavery to freedom? We have chiefly to say that there is as much danger in doing too much as in doing too little. The risk is serious that, under the guise of guardianship, slavery, in a modified form, may be practically restored. Those who have ceased, only perforce, to be slave-holders, will be sure to unite their efforts to effect just such a purpose. It should be the earnest object of all friends of liberty to anticipate and prevent it. Benevolence itself, misdirected, may play into the hands of freedom's enemies, and those whose earnest endeavor is the good of the freedman may, unconsciously, contribute to his virtual re-enslavement.
The refugees from slavery, when they first cross our lines, need temporary aid, but not more than indigent Southern whites fleeing from secessionism, both being sufferers from the disturbance of labor and the destruction of its products incident to war. The families of colored men, hired as military laborers or enlisted as soldiers, need protection and assistance, but not more than the families of white men similarly situated. Forcibly deprived of education in a state of slavery, the freedmen have a claim upon us to lend a helping hand until they can organize schools for their children. But they will soon take the labor and expense out of our hands, for these people pay no charge more willingly than that which assures them that their children shall reap those advantages of instruction which were denied to themselves.
For a time we need a freedman's bureau, but not because these people are negroes, only because they are men who have been, for generations, despoiled of their rights. The Commission has, in supplemental report made to you last December, recommended the establishment of such a bureau, and they believe that all that is essential to its proper organization is contained, substantially, in a bill to that effect reported on April 12 from the Senate Committee on Slavery and Freedmen."
The Freedman's Bureau established schools to teach freed slaves how to read and write and provide them with a basic education. The Bureau also provided food, set up courts to protect emancipated slaves' contractual and other civil rights, and founded savings banks to protect their assets. The crowning achievement of the Freedman's Bureau was its significant accomplishments in the area education, particularly in the face of the hostile political environment towards blacks at the time. By the end of 1867, the number of schools had doubled and the number of blacks (adults and children) being educated had tripled. At the same time, the number of banks (including the "Freedman's Saving & Trust Company," chartered by Congress) had increased and freedmen were saving at a rate of four times higher than the previous year to purchase homestead plots and businesses.
Unfortunately, the activities of groups such as the Ku Klux Klan (KKK), as well as state action in the form of Black Codes and then Jim Crow, would present barriers to the Republican's plan to advance the freed slaves and make sure that the Civil Rights Act of 1866 would fail to secure their civil rights. The KKK, as we'll soon see, was started in 1866 to frustrate the attempts of Republicans to infect the South. Black Codes were laws that were passed in the 1860's by the Southern states (and varying from state to state), to maintain the inferiority of freed blacks and to undermine their civil rights. The black codes were passed in retaliation to the abolition of slavery and the defeat by the North. They had their roots in the former slave codes, which were premised on the notion that Africans were property, or chattel (and therefore, had very few, if any, legal rights). Black Codes were distinct from Jim Crow. Jim Crow refers to an era ushered in later in the 19th century, following Reconstruction.
As mentioned earlier, 1867 was the start of the Reconstruction Era. In order to be re-admitted to the Union , the former confederate states would have to endure military rule until they met the conditions set forth in the Reconstruction Act - including rewriting their constitutions to disqualify former Confederate officials from office, guaranteeing black males the right to vote, and ratifying the 14th Amendment. During Reconstruction, military governors oversaw the registration of voters, in order that freed slaves were not disenfranchised. Under the scrutiny of federal troops, elections were held in which the freed slaves could vote. At the same time, while whites who held leading positions under the Confederacy were not only barred from running for office but were also temporarily denied the right to vote. It was a profoundly bitter time for the South.
Reconstruction was never part of Lincoln's plan to restore the Union. We have to take him at his word. In his second Inaugural Address, he declared: "With malice toward none, with charity for all, with firmness in the right as God gives us to see the right, let us strive on to finish the work we are in, to bind up the nation's wounds, to care for him who shall have borne the battle and for his widow and his orphan, to do all which may achieve and cherish a just and lasting peace."
As one reference describes that period of time for the South: "Reconstruction is the period after the war when the South was under martial law and when the people basically lost their rights as Americans, was a terrible time for the citizens of the former Confederate States of America. It was intended by the US Congress as punishment for secession. The South was controlled by military leaders, who may have been excellent commanders in battle, but were pretty much universally horrible as governors. A 'carpetbagger' government was put in place... Men who were generally scoundrels and often criminals served as 'rulers' of the states and communities. They appointed former Union sympathizers and former slaves in positions of authority, to infuriate and humiliate the people. This was pretty much a lawless time throughout much of the south, not unlike that in the western territories. [Former Civil War General Nathaniel Bedford] Forrest described that government as 'I believe that party to be composed, as I know it is in Tennessee, of the worst men on Gods earth - men who would not hesitate at no crime, and who have only one object in view - to enrich themselves.' " [ www.freesociety.com]
Reconstruction would last for 17 years and would be responsible for much of the resentment that the South continues to feel for the North and for the government in general.
In ten out of the eleven seceding southern states (again, all except Tennessee), black freedmen and white transplants from the North (known as "carpetbaggers" because many brought their belongings in large carpet bags) and white Southerners who switched allegiance and supported Reconstruction (known as "scalawags") joined together to establish republican bi-racial state governments during the Reconstruction era. They introduced various reconstruction programs, secured massive federal aid to re-build railroads and other transportation, established public school systems, and raised taxes to fund it all. They also helped freed blacks become involved in the local government, become educated, and become employed. These groups, however, were seen as outsiders and/or traitors and were attempting to transform the South into a society that it wasn't ready to accept. They would have to be stopped. Thus was born the Ku Klux Klan.
Publisher's note: Diane Rufino has her own blog, For Love of God and Country.
Come and visit her. She'd love your company.
