Foundations of Racial Discrimination: From Slavery to Jim Crow

1
Foundations of Racial Discrimination From
Slavery to Jim Crow

• Bill of Rights Institute
• Fort Wayne, IN
• March 17, 2009
• Artemus Ward
• Dept. of Political Science
• Northern Illinois University
• http//polisci.niu.edu/
• polisci/faculty/ward/
• aeward_at_niu.edu

Preparing Cotton for the Gin at Smiths
Plantation, 1862. Port Royal, South Carolina.
2
Foundations

• In this lecture we will discuss the history and
  aftermath of slavery and the landmark racial
  discrimination cases decided by the U.S. Supreme
  Court.
• We begin with a discussion of Dred Scott v.
  Sandford (1857) and the question of whether
  slaves, or former slaves, could be citizens of
  the United States.
• We then turn to the 14th Amendments Equal
  Protection Clause, the Disputed Hayes-Tilden
  election of 1876, the end of Reconstruction, and
  the rise of Jim Crow.
• Ultimately we see how the Courts narrow
  interpretation of the 14th Amendment in various
  cases such as Plessy v. Ferguson (1896)
  constitutionalized racial discrimination.

3
Slavery

• People of African ancestry have been considered
  an inferior race since the first slaves were
  brought to Jamestown in 1619. They could be
  bought, sold, and used as personal property.
• In 1772, a British court decision referred to
  slavery as odious and called for the release of
  James Somerset, and American slave traveling in
  Britain with his American owner. This decision
  served as a catalyst among southern aristocrats
  to unite with the northern colonies to eventually
  call for independence.
• Although some states extended various civil and
  political rights to emancipated slaves and their
  descendants, the U.S. Constitution did not
  recognize black Americans as full citizens.
• Consider the various slave clauses in the
  Constitution
• Article I, 2 Representatives and direct taxes
  shall be apportioned among the several states
  which may be included within this union,
  according to their respective numbers, which
  shall be determined by adding to the whole number
  of free persons, including those bound to service
  for a term of years, and excluding Indians not
  taxed, three fifths of all other Persons.
• Article I, 8 The Congress shall have power
  To provide for calling forth the militia to
  execute the laws of the union, suppress
  insurrections and repel invasions
• Article I, 9 The migration or importation of
  such persons as any of the states now existing
  shall think proper to admit, shall not be
  prohibited by the Congress prior to the year
  1808, but a tax or duty may be imposed on such
  importation, not exceeding ten dollars for each
  person.
• Article IV, 2 No person held to service or
  labor in one state, under the laws thereof,
  escaping into another, shall, in consequence of
  any law or regulation therein, be discharged from
  such service or labor, but shall be delivered up
  on claim of the party to whom such service or
  labor may be due.

4
Scott v. Sandford (1857)

• Chief Justice Roger B. Taney (1777-1864),
  delivered the 7-2 opinion of the Court. He
  described the prevailing view of blacks when the
  Constitution was written They had for more than
  a century before been regarded as beings of an
  inferior order, and altogether unfit to associate
  with the white race, either in social or
  political relations and so far inferior that
  they had no rights which the white man was bound
  to respect and that the negro might justly and
  lawfully be reduced to slavery for his benefit.
  He was bought and sold, and treated as an
  ordinary article of merchandise and traffic,
  whenever a profit could be made by it. This
  opinion was at that time fixed and universal in
  the civilized portion of the white race."
• Scott, as a slave, could not be a citizen and
  therefore could not sue in the federal courts.
  We think they people of African ancestry are .
  . . not included, and were not intended to be
  included, under the word "citizens" in the
  Constitution, and can therefore claim none of the
  rights and privileges which that instrument
  provides for and secures to citizens of the
  United States. . . ."
• The Courts ruling undermined its legitimacy,
  damaged Taneys reputation forever, and helped
  set the stage for the Civil War.

5
The Post-Civil War Amendments

• After the union victory in the Civil War, the
  Constitution was amended to end slavery (13th
  Amendment), confer full national citizenship on
  black Americans (14th Amendment), and guarantee
  voting rights (15th Amendment).
• Specifically, the 14th Amendment said
• 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.
• Congress moved with dispatch to give force to the
  new amendments. Congress passed the Civil Rights
  Act of 1866 over President Andrew Johnsons veto.
  It guaranteed blacks the right to purchase,
  lease, and use real property. The Supreme Court
  upheld the law, ruling that the 13th Amendments
  enforcement section gave Congress the power not
  only to outlaw slavery but also to legislate
  against the badges and incidents of slavery.
  Indeed, much of the federal housing regulation on
  fair housing is based on this authority.

6
Reconstruction (1866-1877)

• For much of the Reconstruction era, from
  1869-1877, the federal government assumed
  political control of the former states of the
  confederacy.
• Voters in the south elected more than 600
  African-American state legislators and 16 members
  of Congress including the first two (and only
  two) African American to serve as United States
  Senators Blanche K. Bruce and Hiram Revels, both
  of Mississippi.
• Because blacks in South Carolina vastly
  outnumbered whites, the newly-enfranchised voters
  were able to send so many African American
  representatives to the state assembly that they
  outnumbered white representatives. Many were able
  legislators who worked to rewrite the state
  constitution and pass laws ensuring aid to public
  education, universal male franchise, and civil
  rights for all.

Senator Blanche Bruce
Senator Hiram Revels
7
The Supreme Court Weighs In

• But the Supreme Court did not always act with the
  same level of zeal. Although the justices
  supported the claims of the newly emancipated
  blacks in some cases, they did not construe the
  new amendments broadly, nor did they
  enthusiastically support new legislation designed
  to enforce them
• In the Slaughterhouse Cases (1873) the Court
  interpreted the 14th Amendments privileges and
  immunities clause quite narrowly. A broader view
  might have provided opportunities for women and
  blacks to bring cases based on this clause to the
  Court.
• The disputed Hayes-Tilden presidential election
  of 1876, in which an electoral commission
  composed of members of the Court and Congress
  decided the outcome, resulted in the end of
  Reconstruction. The Union Army withdrew from
  southern states and the old South regained power.
  They enacted discriminatory policies to segregate
  their societies.
• In United States v. Harris (1883) and the Civil
  Rights Cases (1883) the Court nullified major
  provisions of the Ku Klux Klan Act of 1871 and
  the Civil Rights Act of 1875 for attempting to
  prevent discriminatory actions by private
  individuals and institutions. The Court ruled
  that only public discrimination could be reached
  by the 13th, 14th, and 15th Amendments.
• As a result, the federal government withdrew from
  civil rights enforcement. It was clear that the
  battle for legal equality of the races was far
  from over. Indeed, the federal government did not
  pass another civil rights bill until 1957

8
Jim Crow Origin

• The term Jim Crow is believed to have originated
  around 1830 when a white, minstrel show
  performer, Thomas Daddy Rice, blackened his
  face with charcoal paste or burnt cork and danced
  a ridiculous jig while singing the lyrics to the
  song, Jump Jim Crow.
• While traveling in the south, Rice created this
  character after seeing either a disabled, elderly
  back man or young black boy dancing and singing a
  song ending with these chorus words
• Weel about and turn about and do jis so,
• Ebry time I weel about I jump Jim Crow.
• Some historians believe that a Mr. Crow owned a
  slave who inspired Rices actthus the reason for
  the Jim Crow term in the lyrics.
• In any case, Rice incorporated the skit into his
  minstrel act, and by the 1850s the Jim Crow
  character had become a standard part of the
  minstrel show scene in America.

9
Jim Crow Laws

• Denying black men the right to vote through
  intimidation and violence was a first step in
  taking away their civil rights.
• Beginning in the 1890s southern states enacted
  literacy tests, poll taxes, elaborate
  registration systems, and eventually white only
  democratic party primaries to exclude black
  voters.
• In Mississippi, fewer than 9,000 of 147,000
  voting age African-Americans were registered
  after 1890. In Louisiana, where more than 130,000
  black voters had been registered in 1896, the
  number plummeted to 1,342 by 1904.
• On the local level, most southern towns and
  municipalities passed strict vagrancy laws to
  control the influx of black migrants and homeless
  people who poured into these urban communities in
  the years after the Civil War. In Mississippi,
  for example, whites passed the notorious Pig
  Law of 1876, designed to control vagrant blacks
  at loose in the community. This law made stealing
  a pig an act of grand larceny subject to
  punishment of up to five years in prison. Within
  two years, the number of convicts in the state
  penitentiary increased from under three hundred
  people to over one thousand. It was this law in
  Mississippi that turned the convict lease system
  into a profitable business, whereby convicts were
  leased to contractors who sub-leased them to
  planters, railroads, levee contractors, and
  timber jobbers.
• Jim Crow laws only spread Consider some
  examples
• Any white woman who shall suffer or permit
  herself to be got with child by a negro or
  mulattoshall be sentenced to the penitentiary
  for not less than eighteen months. Maryland 1924
• No colored barber shall serve as a barber to
  white women or girls. Atlanta, Georgia, 1926

10
Plessy v. Ferguson (1896)

• By a 7-1 vote, the Court upheld a Louisiana law
  which segregated railway cars on the basis of
  race.
• Writing for the majority, Justice Henry Brown
  said, The object of the 14th amendment was
  undoubtedly to enforce the absolute equality of
  the two races before the law, but in the nature
  of things it could not have been intended to
  abolish distinctions based upon color, or to
  enforce social, as distinguished from political
  equality, or a commingling of the two races upon
  terms unsatisfactory to either.
• We consider the underlying fallacy of the
  plaintiffs argument to consist in the assumption
  that the enforced separation of the two races
  stamps the colored race with a badge of
  inferiority. If this be so, it is not by reason
  of anything found in the act, but solely because
  the colored race chooses to put that construction
  upon it.
• In dissent, Justice John Marshall Harlan said
  Our Constitution is colorblind, and neither
  knows nor tolerates classes among citizens. In
  respect of civil rights, all citizens are equal
  before the law.

11
Supreme Court After Plessy

• In response, the legislatures of the South passed
  segregation laws affecting court-rooms, jails and
  prisons, restaurants, hotels, bars, trains and
  train stations, buses, streetcars, elevators,
  lunch counters, swimming pools, beaches, baseball
  fields, fishing holes, telephone booths,
  prizefights, pool halls, factories, public
  toilets, hospitals, cemeteries, schools, parks,
  water fountains, libraries, recreational
  facilities, and almost every other public and
  commercial facility. These laws, coupled with
  segregated private lives, inevitably resulted in
  two separate societies.
• Furthermore, the Court applied Plessy to sustain
  segregation that did not purport to be separate
  but equal as well as a number of other instances
  of racial discrimination
• Cumming v. Richmond County Board of Education
  (1899)the Court refused to interfere with a
  county school system that provided high school
  education for whites but not African-Americans.
• Berea College v. Kentucky (1908)the Court
  sustained a statute requiring private colleges to
  exclude African-Americans.
• Newberry v. United States (1921)the Court
  concluded that party primary elections were
  private affairs, unknown to the framers and
  therefore beyond the reach of the Constitution.
  The decision constitutionalized the white
  primary in the one-party Democratic South.
• Gong Lum v. Rice (1927)the Court affirmed the
  right of Mississippi to segregate
  Chinese-Americans from public schools set up for
  whites.

12
Conclusion

• Just as slavery was implicitly written into the
  U.S. Constitution, the Court explicitly validated
  it through Dred Scott.
• Despite the passage of the post-Civil War
  Amendments, the Court constitutionalized racial
  discrimination through Plessy and similar cases.
• In the next lecture, we examine how the Civil
  Rights movement of the 20th century undertook a
  campaign to realize the promise of the post-Civil
  War Amendments.