14th Amendment & Black Codes

Birthright Citizenship result of oppressive laws aimed at newly-freed African Americans

The 14^th Amendment, ratified in 1868, is very much in the news these days, namely the provision that grants citizenship to any person born in the United States regardless of their parents’ status—better known by the term ‘birthright citizenship.’

As you may or not know (although I suspect most of you do), President Trump—among the many executive orders he issued in the first days of his new administration—included one that ended birthright citizenship for the children of parents who are in the U.S. illegally, or who are here on a temporary, but lawful basis such as those on student or tourist visas.

Given that birthright citizenship is part of the Constitution, lawsuits were filed to overturn the order or otherwise make it ineffective. One federal judge put a temporary restraint on it, allowing the lawsuits to proceed, while another one placed a longer hold on implementation until the lawsuits are resolved. One of the judges in his ruling described the President’s order as “blatantly unconstitutional.”

But as we well know, judges have differing views, depending on their so-called judicial philosophy. With a U.S. Supreme Court majority that has shown a decidedly radical approach to the interpretation of existing law and past precedent, who knows? Likely, the President and his supporters are hoping these justices on our highest court will decide that after over a century-and-half this automatic grant of citizenship needs to be adjusted.

Arguably the most famous, not to mention most impactful executive order ever issued by an American president was Proclamation 95—better known as the Emancipation Proclamation. That president was Abraham Lincoln, who on January 1, 1863, “changed the legal status of more than 3.5 million African American slaves residing in the secessionist Confederate states from enslaved to free.” Of course, for this freedom to be realized, the slaves either had to escape from the control of their masters by running away, which many did, or be liberated by Union troops.

Lincoln issued his order as the Commander in Chief during a time of war, attempting to make the situation more difficult for the enemy. The loss of this manpower would impede the Southern cause. Still, while such pragmatic reason may have played a part, I think most of us agree that his desire to end slavery was the main motive. Yet, as he knew, there was still the matter of slavery being protected by the Constitution. So, he and his Republican allies went to work on passing the 13^th Amendment which would end the nation’s ‘peculiar institution.’ He was still alive when the amendment was passed by the Senate and then the House; however, he was assassinated in 1865 before it was finally ratified by the required number of states a few months later.

While certainly this addition to the U.S. Constitution was a landmark accomplishment, it soon became evident that the 13^th Amendment was not a magic wand which gave blacks the same rights and legal protection as their former owners and other whites. In fact, during the immediate aftermath of the Civil War’s end and even with the amendment’s ratification, the legal status of the newly freed slaves was murky.

The new president, Andrew Johnson, had begun the process of bringing the Confederate states back into the Union, now known as Reconstruction. Taking a lenient approach, Johnson granted pardons to many of the rebels and allowed the Southern states to re-establish their legislatures and run their internal affairs.

With this policy, the former Confederate officials resumed political control of their respective states. And as was the case before and during the war, many of them were the large landowners—the proprietors of the plantations. Just because blacks were now free did not mean these officials regarded them as fellow citizens or of having equal footing. Also, there was the need for someone to work the land.

‘Necessity being the mother of invention,’ the legislatures passed laws that became known as Black Codes. Two of the first were enacted in Mississippi and South Carolina.

An article from the Center for the Study Federalism noted that the laws were “Ostensibly written to smooth the transition from slavery to freedom, (however) Black Codes were particularly harsh in character,” adding that “In an effort assure that the freedmen would remain under the control of their former masters, Mississippi mandated that all African Americans have written documentation of employment at the beginning of each year or face arrest. Freedmen could also be punished for owning firearms or for offering ‘insulting gestures, language or acts.’”

In South Carolina, the article pointed out, African American artisans and mechanics had to pay a high license free to practice their craft and other freedman were banned from taking up such trades.

While the laws differed in the respective states, there were ones that “forced black people to sign yearly labor contracts or risk being arrested, fined, or forced into unpaid labor.” High fines for petty crimes served as another approach with the inability to pay resulting in having to work off the debt. Vagrancy, which was loosely defined, might also have the penalty of the guilty party being forced to work on a plantation. Children were apprenticed to employers without pay either because they were orphans, or the courts ruled their parents could not support them. Some states barred land ownership by blacks, nor could they serve on juries, and interracial marriages were prohibited.

Enforcing the provisions and keeping blacks in check were the armed militias and law enforcement—many of them Confederate veterans.

The goal, as the historical record shows, was to keep the former slaves tied to the land, working for the landowners at one step above forced servitude, along with keeping them subservient. To describe the Codes as “blatantly racist” would be an understatement, although this is a modern term for describing a situation where many whites regarded their former slaves as inferior beings.

As might be expected, many people in the North, fresh from the battlefields of the Civil War, took a dim view of this intransient attitude. Taking an even more hostile view were members of the radical wing of the Congressional Republicans—most of them having been Abolitionists and subscribing to the economic philosophy of Free Labor where people were free to come and go and work for who they wished. As long as Johnson could veto any of their legislation to enforce better treatment of blacks in the South and put more conditions on the re-entry of the southern states into the Union, they were thwarted.

But the Black Codes, along with reports of violence by whites against blacks, resulted in the party gaining a supermajority and effectively sidelining the President.

As noted in the book Out of Many: A History of the American People, “One of the important Congressional acts that ensued was passage of the Civil Rights Bill in the spring of 1866 which bestowed full citizenship on African Americans and overturned the 1857 Dred Scott decision that claimed a black could never be a citizen and the Black Codes. It defined all persons born in the United States (except Indian peoples) as national citizens, and it enumerated various rights, including the rights to make and enforce contracts, to sue, to give evidence, and to buy and sell property.”

“Under this bill, African Americans acquired full and equal benefit of all laws and proceedings for the security of person and property as enjoyed by white citizens.” States also had to enact universal male suffrage as a provision for reentry.

Johnson vetoed the bill, “damming the Congressional Republicans as traitors unwilling to restore the Union.”

The ‘traitors,’ in turn, overrode the veto and then, uncertain of how the courts might rule in the future, decided to incorporate provisions of the Act into a new constitutional amendment.

The subsequent passage of the 14^th Amendment by Congress, amongst other things, defined national citizenship to include former slaves (i.e. ‘anyone born in the United States) and it prohibited the states from violating the privileges of citizens without due process of the law—also known as ‘equal protection under the law.’

The Southern legislatures, while certainly not liking any of this, were given the choice of ratifying the Amendment or not being seated in Congress. So, they ratified the amendment.

As we know, the legacy of the Black Codes would live on, with many of their provisions being resurrected by Southern states through the Jim Crow laws that held sway from the 1890s until the passage of the Civil Rights Act of 1964. And now, even provisions in that 1964 Act have been challenged and undermined as has the Voting Rights Act of 1965.

The attitudes that fostered the Black Codes have, of course, always been with us… the idea of racial or ethnic superiority, along with the use of power and force (legal or violent) to subjugate others. They are like a virus that seems to be able to mutate regardless of what cure we think might be at hand.

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Steve Horton is a mid-Michigan journalist.