Jan. 1 commemorated the 150th anniversary of the passage of the Emancipation Proclamation and this past Thursday, Republican Tim Scott of South Carolina was sworn in as an U.S. senator, making him the first black senator from the South since Reconstruction. To date, there have been only seven blacks who have served in the U.S Senate (only five were elected, the other two were by appointment), so the first three days of 2013 simultaneously showed us how far we’ve come and how far we have to go.
To be sure, Tim Scott and many of the Republicans of Abraham Lincoln’s day were called radical … these are two very different kinds of radical.
The highly-acclaimed movie “Lincoln” highlights the fight on the battlefield and in Congress that ended slavery in our nation. Yet, there is a history in the aftermath of Lincoln’s assassination, known but ignored, that tells the story of where we find ourselves today and the road we traveled to get here.
The beginning of eroding support for civil rights
Although the U.S. Congress was responsible for the passing of the: 13th, 14th and 15th Amendments as well as the Freedman Bureau Acts (1865-66), Civil Rights Act (1866), Reconstruction Act (1867), Enforcement Act (1870), Civil Rights Act (1875), it would buckle under the pressure of the social, economic and political realities of the 1870s.
As the Supreme Court rejected Reconstruction policies in the 1870s, Northern voters grew indifferent to events in the South. Tired of the “Negro question,” many Northern voters shifted their attention to such national concerns as the Panic of 1873 and the corruption of President Ulysses S. Grant’s administration. In addition, a desire for reconciliation between the regions spread through the North.
Although political violence continued in the South and African-Americans were denied civil and political rights, anti-Reconstruction sentiment steadily increased in the North. In time, Republicans began to slowly retreat from the policies of Reconstruction.
Between 1869 and 1875, Democrats recaptured the state governments of Alabama, Arkansas, Georgia, Mississippi, North Carolina, Tennessee, Texas and Virginia. The Southern Democrats called their return to power redemption. However, the virtual abandonment by Congress of Reconstruction policies and the cause of equality for African-Americans occurred in 1876.
The election of 1876
Both major political parties were influenced by the Grant era corruption and sought to nominate candidates who could win the public trust.
The Democrats turned to Samuel J. Tilden, who had established an enviable record as the reform-minded governor of New York. Tilden was on record as favoring the removal of the remaining federal occupation soldiers from the South, a position regarded favorably by his supporters in that region.
The Republicans passed over the front-runner, James G. Blaine, because of his participation in some questionable dealings. The nomination was eventually given to the respected governor of Ohio, Rutherford B. Hayes. While the platform called for taking steps to assure black equality, Hayes was skeptical at best. Attacks were made on Tilden’s questionable health and his ties to the railroads.
The election results left the nation in suspense. All agreed that Tilden had won the majority of the popular vote, but there was little agreement on what the electoral results should be. In order to win, a candidate needed 185 electoral votes. Tilden controlled 184 votes and Hayes 165; 20 votes, however, were in dispute in South Carolina, Louisiana and Florida where Reconstruction Republican governments were still in control. A single elector was challenged in Oregon — can anyone say Florida 2000?
Each of the states with disputed votes submitted two sets of electoral ballots, one favoring Tilden, the other Hayes. The Constitution had not foreseen this event and offered no remedy. Loose talk was heard in some quarters about the possibility of war breaking out. In the end, Congress opted to appoint an Electoral Commission to find a solution.
An informal agreement between the two parties, sometimes called the “Compromise of 1877,” convinced the Democrats that they should accept the Commission’s 8-7 vote, which made Hayes the new president.
The devil is in the details
In the months following the election of 1876, but prior to the inauguration in March 1877, Republican and Democratic leaders secretly hammered out a compromise to resolve the election impasse and address other outstanding issues.
Under the terms of this agreement, the Democrats agreed to accept the Republican presidential electors (thus assuring that Rutherford B. Hayes would become the next president), provided the Republicans would agree to the following:
- To withdraw federal soldiers from their remaining positions in the South;
- To enact federal legislation that would spur industrialization in the South;
- To appoint Democrats to patronage positions in the South; and
- To appoint a Democrat to the president’s cabinet.
Once the parties had agreed to these terms, the Electoral Commission performed its duty. The Hayes’ electors were selected and Hayes was named president two days before the inauguration.
To the 4 million former slaves in the South (and blacks as a whole), the Compromise of 1877 was the “Great Betrayal.” Republican efforts to assure civil rights for freed slaves were totally abandoned. The dominant population of the country was anxious to get on with making money.
No serious move to restore the rights of black citizens would surface again until the 1950s. Here we see how some whites, even those who are perceived as radical and progressive, can suffer from “social justice-fatigue” or “civil rights exhaustion.”
The fight for the rights of blacks became too burdensome and thus the Republican Party of old, like Pontius Pilate, washed their hands of black folk and consequently left us out to dry. It is also important to note that during Reconstruction approximately 20,000 blacks were killed as a means of intimidation and retaliation.
Plessy becomes the law of the land
After the Compromise of 1877, we were even more vulnerable than we were before. In the 1860s and 1870s, the duplicity toward blacks was complete and total with the presidency, Congress and the Supreme Court all showing either outright hostility to the interest and concerns of blacks in America.
The laws and policies included Andrew Johnson’s policies in regard to newly freed slaves and the Supreme Court in decisions such as the Slaughterhouse cases of 1873, that decided that the 14th Amendment protected only the rights people had by virtue of their citizenship in the United States, such as the right to federal protection when traveling on the high seas and abroad. In 1883, the court also ruled that the Civil Rights Act of 1875, forbidding discrimination in hotels, trains and other public spaces, was unconstitutional and not authorized by the 13th or 14th Amendments of the Constitution indifference (i.e., the “negotiating” away of the rights and freedoms of blacks by Congress in 1877). This all culminated in Plessy v. Ferguson in 1886.
Plessy came down to one question: How was the 14th Amendment to be construed? The 14th Amendment itself was both an opportunity and a quandary. Adopted in 1868, it seemed to guarantee equal rights for all: “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 key phrase was “equal protection of the laws.” Read broadly, it might mean that hereafter the Constitution would be colorblind: No state law could have the effect of treating whites and blacks differently. Thus a law segregating blacks and whites into separate schools or neighborhoods would be unconstitutional. Read narrowly, “equal protection” might mean only that blacks and whites had certain fundamental legal rights in common, such as the right to sign contracts, serve on juries or buy and sell property, but otherwise be treated differently.
The Supreme Court took the narrow view. (A side note: When politicians speak of “strict constructionists,” this is what they are talking about). Though in 1880 it declared unconstitutional a West Virginia law requiring juries to be composed only of white males, it decided in 1883 that it was unconstitutional for Congress to prohibit racial discrimination in public accommodations such as hotels.
The difference between the two cases seemed, in the eyes of the court, to be this: Serving on a jury was an essential right of citizenship that the state could not deny to any person on racial grounds without violating the 14th Amendment, but registering at a hotel was a convenience controlled by a private person (the hotel owner), who could treat blacks and whites differently if he or she wished.
It would be an almost overwhelming task to document all the civil rights abuses visited upon America’s emancipated slaves from 1863 to now. With the fresh assailing of voting rights in state after state across the Union, we are reminded that the Civil War continues. What is reassuring, however, is that the latest onslaught of injustice has also provoked new soldiers and warriors to fight against it.