13th Amendment, Reconstruction, and Circumscription

¶ … 13th Amendment, Reconstruction, and Circumscription of Federal Constitutional Authority: the Black Codes and the Ku Klux Klan

Thomas Jefferson wrote in the Declaration of Independence (1776) that "all men are created equal" under United States law. Throughout U.S. history, however, and especially during Reconstruction from 1863-1877 (see Johnson 1-15) African-Americans have enjoyed lesser rights and protections under federal law than other Americans, especially whites. Part of the "Great Compromise" of 1787 was that blacks (then still slaves) counted as three-fifths of a person in determining numbers of representatives states sent to the House of Representatives (Ratification Debate 2). In the 1857 Dred Scott v. Sanford case, a black man, Dred Scott, who had lived in the northern free states of Illinois and Wisconsin, but then moved south to a slave state (Missouri), sued for his freedom. The United States Supreme Court, led then by Chief Justice Roger B. Taney, a slavery supporter, ruled that since Scott was black, he was not a citizen, and had no right to sue (Judgment Day 1). Only with the Civil War's end in 1863 and subsequent ratification, in 1865, of the 13th Amendment, did blacks win their freedom. But Reconstruction was neither kind nor equitable to blacks as a group. The 13th Amendment may have ended slavery legally, but the de facto end of slavery, especially in the American South, did not occur until the ratification of the 14th Amendment, in 1866, and of the 15th Amendment in 1869. Constitutional authority of the 13th Amendment, then, was in fact almost immediately circumvented by the southern states and their legislatures. Two key factors contributed to the lingering effects of slavery: (1) the Black Codes (state laws applied to newly-freed blacks in Southern states, on a state-by-state basis), which began springing up in 1865 after the passage of the 14th Amendment ((Judgment Day 1).), and (2) the rise and extensive violent activities of the Ku Klux Klan, which terrorized blacks (for an example, see Johnson 9-13). The constitutional authority of the 13th Amendment was, in many ways, then, circumvented, and quite successfully so, by the Southern states.

As Michael P. Johnson further explains: "After the Civil War, the legal status of former slaves was defined by state legislatures throughout the South.... white legislators devised laws to regulate and control former slaves. Known as black codes, these laws defined freedom for African-Americans in terms that resembled slavery in many respects" (1). Moreover, "Their [the Black Codes'] very evident purpose was to reduce free blacks to a new kind of legal servitude distinguished by all the disadvantages of slavery and none of its advantages -- a state, many argued, that was worse than slavery itself" ("Black Codes in the Former Confederate States" 1).

In examining one such set of state laws, the Mississippi Black Code, November 1865 ("Mississippi Black Code" 2), it can be easily inferred that such laws were intended to limit the ability of blacks to gather together (even in small groups); to assemble in large groups, or to own firearms with which they might threaten whites (3-4). Black minors without parents or guardians were to be apprenticed "to some competent and suitable person, on such terms as the court may direct... Provided, that the former owner of said minors shall have the preference... "(3), meaning that the minor slave's former owner had "first refusal" to apprentice him or her in a manner very similar to the slavery he or she had just escaped. Moreover, "said court shall require... bond and security, payable to the State of Mississippi... said apprentice shall be bound by indenture, in case of males until they are twenty-one years old, and in case of females until they are eighteen years old..."("Mississippi Black Code").

In Alabama, "it was the duty of all 'Civil officers'... To report 'the names of minors whose parents have not the means, or who refuse to support said minors'. They might be...arrested, fined, and then sentenced to work off their fines" ("Black Codes in the Former Confederate States" 1). In Florida, "A black owning any weapon 'of any kind' had to surrender his arm or arms... 'stand in the pillory... For one hour, and then [be] whipped with thirty-nine lashes on the bare back.' ("Black Codes..."). Article II of the Bill of Rights.".. The right of the people to keep and bear Arms..." (Carman 776) obviously did not apply to ex-slaves in Alabama. Clearly, then: "Southerners were entirely convinced that the freedmen presented a fearful menace to white society" (2). The Black Codes, which limited the freedoms of blacks, state-by-state, from 1865 to 1867, were nullified only by the 14th amendment (1868) and by the Reconstruction Act of 1867 ("Congress Shall Not Have the Power" 3).

A second key factor that impinged on daily rights and liberties of ex-slaves, supposedly granted them by the 13th Amendment, was the rise and subsequent violent activities, especially in the South, of the Ku Klux Klan against blacks. According to Douglas Brinkley, "Formed in 1866, the Klan... gave disenfranchised Southerners a sense of power and purpose. It soon grew into a lawless 'invisible empire," using violence to intimidate African-American voters as well as carpetbaggers and scalawags" (History of the United States 238). and, as Carman et al. explain: "In 1867, just as the Reconstruction Acts were being put into operation, a grand convention in Nashville transformed the Klan into a sectional organization in which the former slave states, withy the exception of Delaware, were erected into the 'Invisible Empire'" (a History of the American People 738). The Ku Klux Klan, then, in combination with the Black Codes, effectively circumvented the freedoms granted ex-slaves by the 13th Amendment by terrorizing them, on a widespread basis, into further servitude. Testifying before a Congressional committee investigating the activities of the Ku Klux Klan in 1871, Elias Hill, a deformed man with very short legs, unable to walk, who had been born into slavery, but whose freedom was purchased and who later became a Baptist minister, stated:

On the night of the 5th of last May... They came in a very rapid manner... Some one then Hit my door. It flew open.... [They] threw the bedclothes off of me and caught me by one

Arm, while another man took me by the other and they carried me into the yard between the houses... And put me on the ground beside a boy.... they asked,... 'Who did that burning? Who burned our houses?'... I told them it was not me; I could not burn houses; it was unreasonable to ask me. Then they hit me with their fists and said I did it, I ordered it.

They all had disguises on. (Hill 10-11).

As Carman et al. explain:

By nocturnal visits, warnings inscribed in blood, ghostly parades in white robes and weird looking masks and other methods, the Klansmen terrified the freedmen. If 'peaceful' intimidation failed, violence was used.... The vigilantes... dispersed gatherings of freedmen, and forced some Reconstruction officials to leave the South (738-9).

Through its clandestine activities that terrorized the blacks, the Ku Klux Klan effectively, even if not legally, more or less enslaved them using fear, despite the freedom granted them by the 13th Amendment. Clearly, the 13th Amendment did not entirely free them, then: it was not until 1871 that "Congress passed the Ku Klux Klan Act, which gave the federal courts jurisdiction over conspiracies against the freedmen and authorized the President... To declare martial law in any terrorized community" (Carman 739). Even then, however, various state laws continued to interfere with federal laws protecting blacks, and even well into the 20th century, "The Supreme Court nullified laws Congress passed to protect African-Americans from intimidation and murder by lawless mobs" (Reconstruction 7).

In this essay, I have sought to analyze two examples of state circumvention of the de facto Constitutional authority of the 13th Amendment to protect black Americans against the severe limitations on their day-to-day rights and freedoms formerly imposed by slavery. By enacting the Black Codes, starting in 1865, following the 13th Amendment, however, and by giving birth, in 1866, to the Ku Klux Klan and its reign of terror over the freedmen, the southern states successfully circumvented the actual enjoyment by blacks of most of the freedoms granted them by the 13th Amendment.