Wednesday, May 1, 2013

Our Decrepit Constitution: Slavery by Another Name

During the last days of the Civil War, Congress passed the Thirteenth Amendment. This amendment freed all the slaves in perpetuity, including those not yet freed by the Emancipation Proclamation. The Fourteenth (1868) and Fifteenth (1870) Amendments followed within a short while.

The Constitution was not strong enough by itself to protect the newly minted rights of freedmen. The government posted federal troops in the states of the former Confederacy to enforce the law. Freedmen--former slaves--voted in elections for the first time. African-Americans were elected to state offices, helped by laws that made former Confederate office holders ineligible to run.

The freedom and justice promised by the Fourteenth Amendment was short-lived. The Ku Klux Klan began intimidating and murdering Republicans and African-Americans in 1868. The Klan murdered Republican organizer George Ashburn in Columbus, Georgia, on March 28, 1868. The Klan published a pamphlet intended to slander Ashburn and intimidate anyone who might try to take his place as an organizer. The pamphlet charged that Ashburn was living with an African-American woman and described the place of assassination as a brothel.1

Nine men, described as prominent citizens, were arrested and brought to trial before a military tribunal. Before they could be tried, the Georgia legislature accepted the Fourteenth Amendment, which was the condition set for reentering the union. The military government was dissolved and the prisoners released. No one was ever tried for Ashburn's murder.

A group of African-American Republicans marched from Albany to Camilla to attend a political rally in September, 1868. White southerners ambushed them in Camilla's Courthouse Square, killing 12 and wounding many others. The white men kept on attacking the group as they retreated along the road back to Albany. Other similar massacres occurred in South Carolina and Alabama.

Some political leaders were intimidated or imprisoned. T. G. Campbell described how he argued before the Georgia Legislature that he and other freedmen should be allowed to speak. While he was speaking, the white legislators put their hands on the butts of their pistols and made threatening gestures at him. Campbell gave up after eight days of argument. Later he took office as justice of the peace and organized a group of 300 African-American horsemen to protect himself from the Klan.

Campbell could perhaps protect himself from violence within the enclave of freedmen he organized along the Georgia coast, but he could not protect himself from miscarriage of justice perpetrated by his white enemies. Campbell was charged with malfeasance in office and brought before a local judge. He was convicted and immediately jailed. Campbell spent the next year and a half being shuffled from jail to jail. His wife tirelessly worked to free him, but nothing she did was of any use. Judges avoided him. New trials were arranged, but with each new trial came demands for new documentation that had to be found and delivered to the court.

Finally, Campbell's wife secured an order from the U.S. Attorney General that the case be moved to a federal court. Campbell believed that he was about to be cleared, but his lawyer failed to file the proper papers and his case was dismissed. After the dismissal in federal court, Campbell was sent to a prison camp where the prisoners were worked from dawn to dusk and beaten if they fell behind the other workers. This system of forced convict labor replaced slavery to a certain degree. Campbell's wife interceded for him with the camp overseer and succeeded in getting him a job more suited to his age. He was sixty-three when he entered the camp in 1876.2

Following the passage of the Fourteenth and Fifteenth Amendments, Congress passed several Civil Rights Bills to protect the civil rights created in the amendments. The Supreme Court set about methodically destroying these rights in a series of decisions that ran counter to the spirit and the letter of the amendments.

In Blyew v. United States (1871), the Court ruled that the Civil Rights Act (1866) did not affect the witnesses in a case. The Bill specifically states that all persons born in the United States are citizens and that citizens have a right to give evidence in court cases. In Blyew, two African-Americans were denied the right to testify by Kentucky state law. The Court construed the Civil Rights Act to apply only to principals in court cases, not witnesses, despite the clear intent of the law, and affirmed the ruling of the Appellate Court. In this case, the principal, a blind, 75-year-old African-American woman, was the murder victim. Since she was dead, the Court ruled, the federal court had no jurisdiction in the case.

In United States v. Cruikshank (1876), the Supreme Court ruled that the Enforcement Act of 1870 was only binding on state actions, not individuals. Using this logic, the Court overturned the convictions of two white men who had joined the Colfax Massacre in Louisiana, when over 100 blacks were murdered by a white militia. The Congress had intended this Act specifically to address the actions of the Ku Klux Klan, so the Court ruled exactly counter to the purpose of the Act. The Court's action left the freedmen in the south at the mercy of the Klan and numerous other private militias. Their action returned African-Americans to their pre-War status, when an African-American could be raped, murdered, or tortured by a white with impunity.

In the Civil Rights Cases (1880), the Supreme Court ruled likewise that the Fourteenth Amendment did not apply to private citizens, like railroads, hotels, and the operators of public amusements. These individuals, said the Court, had the right to choose the people they wanted to associate with, regardless of what the Fourteenth Amendment said. Justice Harlan, the sole dissenting voice in these five decisions, reminded the Court that private railroads were by law public highways, that innkeepers had long been held to be public servants of a sort, and that public amusements are maintained under a license coming from the public. No state, said Harlan, nor any corporation or individual acting under state authority for the public good, can discriminate against freemen or citizens. These rulings put an end to efforts by Congress to ensure civil rights for African-Americans and ushered in an era of segregation and second-class citizenships.

In U.S. v. Harris (1883), the Supreme Court once again ruled that federal courts had no jurisdiction in cases of murder or assault. These cases were matters for the states. It did not matter that the persons assaulted were African-Americans and the assailants were a group of Ku Klux Klansmen. In Harris, the Klansmen dragged four African-Americans from their jail cells and beat them, one of them to death. Although Federal Law intended to stop such violations of African-American civil rights, as authorized under the Fourteenth Amendment, the law was unconstitutional because it usurped the rights of the states. Harris also ruled that the sheriff who had custody of the African-Americans who were beaten could not be held liable under federal law because he was liable only for his actions, not his inactions. Under this ruling, depriving a person of his life is not the same thing as depriving him of his Constitutional rights, and inaction is not a form of action.

Not until the 1960s did the Supreme Court repudiate the extreme racism inherent in all these rulings (and others besides). The Constitution failed to protect individuals from crimes committed against them, even when Congress explicitly created laws saying that it should.

1 Radical rule : military outrage in Georgia: Arrest of Columbus prisoners (Louisville, Ky., 1868), Since this pamphlet declares in its preface that its intent is to convey the proper impression of military despotism to the northern mind, its content must be treated as completely unreliable.
2Campbell, T.G., Sufferings of the Rev. T. G. Campbell and his family, in Georgia (Washington, 1877),

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