Notes on Reconstruction, Jim Crow, and Civil Rights

Issues to consider while reading:

Following are some themes and issues you should look for in the readings for this unit. They can also serve as a guide for class discussion and exam questions.

What were the most important constitutional questions that had to be solved upon the end of the Civil War?

How might the Reconstruction Amendments fall short of what should qualify as a constitutional amendment? What considerations does Harrison bring up to argue that, nevertheless, their status is fully legitimate?

How and why does participation by the freedpeople in politics in the former slave states change over the period of Reconstruction and the "second retreat" as described by Klinkner?

During the post-Civil War period, assess the varying role played by the Constitution, and in particular by the 13th, 14th, and 15th Amendments, in creating and safeguarding civil rights regardless of race. What other laws, actions, and decisions by the national government contributed to, or interfered with, this process?

More to come on readings for Monday Sep. 23.


For class discussion

Reconstruction and Legitimacy (Harrison article)
The Jim Crow Era (Klinkner chap. 3)
The Civil Rights Era (Klinkner chap. 8)
Realignment and Retreat (supplemental articles)

Reconstruction and legitimacy

A timeline of Secession and Reconstruction

Constitutional problems of Reconstruction

  • legal status of the freedpeople
  • restoring state government?
  • Presidential vs. congressional control

And a big political problem: the impending end of the 3/5 rule.

  • As it turned out, population growth in the North offset this. Even including the border states (WV too), where the largest gains occurred,
    • 1860: House apportionment was 34.9% slave states.
    • 1870: House apportionment was 35.6% slave states.

Theories of reconstruction

  • conquered provinces (Thad Stevens): their people enemy aliens, their property subject to confiscation
  • state suicide (Charles Sumner): revert to territorial status, subject to reorganization (even territorially)
  • secession is impossible, and the states still existed, but
    • state govt suspended pending reconstruction (Pres. Johnson); or,
    • their governments and constitutions are dissolved (Rep. Samuel Shellabarger (OH), and increasingly many others)

Presidential vs. Congressional Reconstruction

Presidential Reconstruction:

  • states to hold conventions,
  • adopt new constitutions abolishing slavery
  • set up new governments
  • ratify 13th amendment (only MS failed the latter, objecting to the enforcement clause)
  • accomplished by Dec. 1865

Dec. 1865 39th Congress’s majority Republicans determined no Southern members would be seated pending report of its new Joint Cmte on Reconstruction (JCR).

Radical Republicans seize the initiative from Johnson:

  • Johnson vetoes Freedmen’s Bureau reauthorization (Feb) and Civil Rights Act (March);
  • Congress passes Civil Rights Act of 1866 over Johnson’s veto (April);
  • Congress passes 14th Amendment and receives JCR report (June);
  • Johnson’s “swing around the circle” campaigning against the Radicals and encouraging southern states to reject 14th Amendment;
  • in congressional election, Republican gain Senate seats and maintain a large House majority (even if all southerners were seated as Dems)
  • In 1867 Congress passes acts defining their version of Reconstruction

The problem of constitutional legitimacy

The question of who needs to ratify: are the 10 excluded states still in the denominator? And are they in the numerator?

Harrison's main argument: The Reconstruction Amendments should be understood as having come from the normal Article-V process.

  • Even “defective” but de facto governments, as provisional governments, may take legally effective actions if recognized by outside authority (Congress, federal courts when remanding) and by subsequent permanent state govts (which never repudiated, and often explicitly adopted, provisional govt laws).
  • Congress has power of recognition under Luther v. Borden (1849) and the Guaranty Clause (Art. IV, sec. 4).
  • Supreme Court, by granting standing, accepted legitimacy of provisional state govts (but not Confederate state govts) in Texas v. White (1869).
  • “Coercion” by the U.S. inhered mainly in forcing universal male suffrage; the resulting Cong. Reconstr. govts did not have to be coerced to ratify.
Reconstruction and Legitimacy (Harrison article)
The Jim Crow Era (Klinkner chap. 3)
The Civil Rights Era (Klinkner chap. 8)
Realignment and Retreat (supplemental articles)


Reconstruction and retreat

Provisions of the 14th Amendment (certified 28 July 1868)

  • 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;"
      • [same wording as the 5th amendment: "No person shall be deprived of life, liberty, or property, without due process of law"]
    • "nor deny to any person within its jurisdiction the equal protection of the laws."
  • Section 2: punitive apportionment if any males over 21 are denied the vote
  • Section 3: disqualification from office of former oath-taking officials who joined the Confederacy
  • Section 4: Validity of the federal debt (esp. for the war) "shall not be questioned"; but neither the U.S. nor any state may repay Confederate debt.
  • Section 5: Congress authorized to enforce via "appropriate legislation"

Klinkner's thesis about wars and civil rights advancement: wars that are preceded by significant organized demands for civil rights; and in which the participation of African-Americans is regarded as critical. This includes the Revolution, Civil War, and Second World War.

  • note terminology of the 1st, 2nd, and 3rd Reconstruction

The end of Reconstruction

  • organized racial and election violence in the south; Redeemer movements, first successful in Tennessee 1869
  • the Enforcement Acts (1870, 71) and suppression of the Klan
  • partial success of Reconstruction: economic and education gains, high voting rates, officeholding among southern blacks
  • northern loss of will; Panic of 1873
  • Democrats to take control of 44th House (1875); lame-duck Congress passes Civil Rights Act of 1875 (outlawing segregation in public accommodations)
  • Redemption completed in 1876 elections, with takeover of FL, SC, LA
  • Withdrawal of last troops from south following 1876 election settlement

The establishment of Jim Crow

  • Much federal enforcement power from the Enforcement Acts struck down in 1875 Supreme Court decisions --> increased threat and use of violence against would-be black voters
  • Continued efforts by the pro-Reconstruction wing of Republicans
  • Plessy v. Ferguson (1896) and its progeny promoted the spread of laws segregating public facilities, such as passenger trains
  • Disfranchising state laws and constitutions: esp., Mississippi constitution of 1890) ('the Mississippi Plan")
    • avoided explicit distinctions in voter qualifications by race
    • depended, esp. for literacy tests, on discriminatory administration by local officials: Court refused to rule out such practices in decisions around 1900.

Bills and key Court cases for and against civil rights, prior to 1960

Seeds of resistance

  • Establishment of NAACP (1909) and other groups
  • Occasional pro-civil rights court interpretations of 14th Amdmt
  • The Great Migration: % of African-Americans in the South changed from over 90% in 1910 to 53% by 1970
    • creation of a significant new constituency group for many northern politicians
    • no black representives in Congress 1902-1928
    • black-majority districts with black representatives started to appear: South Chicago 1929, Harlem 1945, Detroit 1955, Philadelphia 1957, Watts 1963
    • (then Voting Rights Act kicked in)

Nevertheless, politics was unfavorable to civil rights on both sides

  • TR and Wilson and their racial attitudes
  • (but note efforts by some social scientists -- not the majority! -- to counter race-based theories of social merit)
  • Traces of civil rights support in Congress: introduction of anti-lynching bills
Reconstruction and Legitimacy (Harrison article)
The Jim Crow Era (Klinkner chap. 3)
The Civil Rights Era (Klinkner chap. 8)
Realignment and Retreat (supplemental articles)


Another Reconstruction

Great Depression and New Deal

Nazi/fascist movements' effects on US thinking

Glimmers of hope in the New Deal & Second World War

  • Soc Sec. and other programs' effective exlcusion of blacks; WPA inclusion
  • March on Washington Movement and establishment of the FEPC

Executive actions by Truman

  • 1946 President's Committee on Civil Rights
  • 1948 order to desegregate the armed forces
  • 3-way split of Democrats in 1948; Truman still wins


Brown and Cold War, and the "civil rights revolution" of the 1960s

Brown v. Board of Education (1954)

  • followed a series of anti-segregation decisions by the Court concerning education
  • Court's argument concerning deleterious effects on schoolchildren
  • immediate application to municipal parks, etc.
  • anti-classification vs. anti-subordination interpretations

The limited effectiveness of Brown?

  • massive resistance, generating resistance but also widespread attention to ugly incidents
  • civil rights movement: Montgomery, sit-ins, freedom rides, voter registration drives; the strategy of "nonviolent direct action"
  • Cold War pressures

Civil Rights laws

  • Civil Rights Act of 1957: CR Commission (on discrimination in voter registration); a set of new fines and penalties, and new DoJ CR division to enforce and apply them
  • Civil Rights Act of 1964: forbidding public accommodations segregation and employment discrimination, based on interstate commerce powers
  • Voting Rights Act of 1965: harsher federal monitoring and enforcement of barriers to registration and voting, including a system of pre-clearance of issues that, prior to 1965, had statutorily limited, or met certain numerical criteria on inequalities of, registration and voting
  • Civil Rights Act of 1968: housing discrimination
Reconstruction and Legitimacy (Harrison article)
The Jim Crow Era (Klinkner chap. 3)
The Civil Rights Era (Klinkner chap. 8)
Realignment and Retreat (supplemental articles)


Realignment and retreat

the seeds of its own destruction?

  • Cold war motivations receded
  • dissatisfaction with the impact of nonviolent direct action
  • Development of resistance to integration and other ameliorative efforts: affirmative action; federal monitoring of local administration; school busing
  • Operation Dixie, Southern strategy, and political realignment


Conclusion: the Reconstruction Amendments and Constitutional Rights

The long dormancy of the Reconstruction Amendments.

The inconsistent role of the courts

  • Narrow interpretations of the 14th, 15th Amendments
  • Foundational Role in the civil rights movement period
  • Varied, but perhaps increasingly limiting, decisions since.
    • remediation vs. “reverse discrimination”: strict scrutiny for minority hiring preferences
    • Brown vs. Parents United
    • Voting Rights Act vs. Shelby County v Holder

Reformulation and reassertion of political opposition to some of the classic goals of the civil rights movement.