Repressing Oppression
The Memory of American Slavery and Segregation
in the Age of Transitional Justice
Untitled, Alabama, 1956 (Gordon Parks)
Juliann Peters MA Thesis
Master in History—Holocaust and Genocide Studies University of Amsterdam
July 2018
Supervisor: Dr. Nanci Adler Second reader: Dr. Karel Berkhoff
Table of Contents Word Count: 23,946
Abstract………..………..……….4 Introduction………..6 Chapter 1………...8 An International or Domestic Issue: Transitional Justice and the United States
United States Exceptionalism
Transitional Justice and the United States
Why Should the U.S. Embrace Transitional Justice?
Chapter 2……….16 Slavery to Reconstruction: What Does It Mean to be Free?
The Constitutional Preservation of Slavery From Compromise to Civil War
Emancipation and Reconstruction (1865-1877) The Meaning of Freedom
Chapter 3……….29 Jim Crow and Civil Rights: A Century-long Power Struggle
Oppression in the Jim Crow Era A Cultural Renaissance (1910-1940) The Civil Rights Movement (1954-1968) A New Hope
Chapter 4……….43 It’s What You Mean, Not What You Say: Racism in the Modern Era
Racism in a Post-Racial America Transitional Justice after Civil Rights
The Greensboro Truth and Reconciliation Commission Reparations
Public Apologies
Civil War Monument Removal
Conflicting Desires in the Contemporary Moment
Chapter 5……….59 135 Years Later: The Relevance of Slavery
Racial Barriers of the Modern Era Representations of Slavery in Pop Culture Transitional Justice and American Slavery
Conclusion………...70 Bibliography………...74
Abstract
This thesis explores the legacy of slavery and segregation in the United States during the age of transitional justice. It examines two major transitional eras in American history, Reconstruction and Civil Rights, and how transitional justice mechanisms have been implemented in the country thus far. This thesis argues that the present moment can mark the end of institutionalized racism in the United States by embracing transitional justice, alongside the necessity for the country to formerly apologize for the institution of slavery.
To accept one’s past—one’s history—is not the same thing as drowning in it; it is learning how to use it. An invented past can never be used; it cracks and crumbles under the pressures
of life like clay in a season of drought.
James Baldwin, The Fire Next Time
Replace ropes with bullets. Hound dogs with German shepherds. A gray uniform with a bulletproof vest. Nothing is
new.
Introduction
The dedication page to Jesmyn Ward’s 2016 publication The Fire This Time reads, “To Trayvon Martin and the many other black men, women, and children who have died and been denied justice for these last four hundred years.” Ward’s book, a compilation of essays regarding what it means to be black in America, served as a response to James Baldwin’s 1963 book The Fire Next Time, which consisted of two essays that discussed the meaning of race during the Civil Rights movement. If Baldwin was waiting for the fire, Ward has delivered it. But what is the fire? The fire is an unconfronted history. The fire is inequality. The fire is the desire for change.
When we think of this fire, we think of images of slaves and segregation, a quick association that leads us to the American South:
America, and the American South. A place where old myths still hold a special place in many white hearts: the rebel flag, Confederate monuments, lovingly restored plantations, Gone with the Wind. A place where black people were bred and understood to be animals, a place where some feel the Fourteenth Amendment and Brown v. Board of Education are only the more recent in a series of unfortunate events. A place where black life has been systematically devalued for hundreds of years.1
The American South is inarguably the location of this history and many atrocities, but the whole of America shares responsibility—the responsibility of slavery, of Jim Crow, and of modern crimes. Northern industry benefitted from raw materials harvested by slaves. Northern and Western cities prevented migrant African Americans from moving into white neighborhoods. And today black men and women are victims of police brutality across the country.
The United States has not ignored its history of racism. The country has tried to address problems associated with racist policies in both the nineteenth century during Reconstruction and the twentieth century during Civil Rights. Yet, issues of institutionalized racism and violence still prevail. Today African Americans are fighting for equality and, in certain cases, mere survival. A black man was in the White House while people on the streets were chanting, “black lives matter” and “no justice, no peace.” Police officers were going unpunished for murdering unarmed victims. Cities broke out in protest and riot. Activists published essays and books, appeared on talk shows, and organized rallies signaling that it was time for a change. Americans were demanding action in the era of transitional justice.
They wanted to address the history of slavery and Jim Crow segregation, to address the issues that have inadvertently shaped the African American community and identity. Reconstruction failed them. Civil Rights did not reach far enough. Something else must come next.
This thesis focuses on how the United States could employ transitional justice mechanisms to address modern racism as well as the country’s history of slavery and racial policy. It examines the United States’ overall policy on transitional justice and the transitional efforts of three major eras: Reconstruction, Civil Rights, and the present day. This thesis aims to present racial issues of the United States in historical context, and argues that the present moment can mark the end of institutionalized racism by embracing transitional justice. A brief timeline of the division of American racial history follows as thus:
1619-1861: The Antebellum period/Era of Slavery 1861-1865: The American Civil War
1865: The passage of the 13th Amendment and abolishment of slavery 1865-1877: Reconstruction
1877-1954: Jim Crow/Era of Segregation
1954: Brown v. Board of Education ruling and legal end to segregation 1954-1968: The Civil Rights Movement
1968-2018: Post-Civil Rights/The Modern Era
Three hundred and ninety-nine years have passed since the first slaves landed on the shores of America in 1619. Although the institution of slavery no longer exists, African Americans still live with its consequence: racism. The foundations of racism in the United States must be properly addressed and acknowledged in order to promote racial equality in society. In the words of Ward, “We cannot talk about black lives mattering…without reckoning the very foundation of this country.”2
2 Ward, The Fire This Time, 9.
Chapter One
An International or Domestic Issue: Transitional Justice and
the United States
In May of 2016, the United States Department of State (USDS) published a transitional justice policy paper series. According to the USDS website, the paper series “was developed to reflect U.S. policy understanding of a range of transitional justice mechanisms related to peace-building, accountability, human rights, and reconciliation in post-conflict and post-authoritarian transitions.”3 The transitional justice policy papers provided an overview of transitional justice and discussed the various mechanisms such as truth commissions, criminal prosecutions, reparations, lustration and vetting, and amnesties. The purpose of this paper series was to promote peace and transitional justice in the global community, but had one glaring flaw: the United States was not included in the discussion.4
The USDS defined transitional justice is “a range of measures—judicial and non-judicial, formal and informal, retributive and restorative—employed by countries transitioning out of armed conflict or repressive regimes to redress legacies of atrocities and to promote long-term, sustainable peace.”5 This definition excluded the United States because it was not, in 2016, a country transitioning out of armed conflict or an explicitly repressive regime, neither post-conflict nor post-authoritarian. However, this definition was not the only definition of transitional justice. The International Center for Transitional Justice defined it as the “ways countries emerging from periods of conflict and repression address large scale or systematic human rights violations…that the normal justice system will not be able to provide an adequate response.”6 Alternatively, scholar Ruti Teitel defined transitional justice as “the conception of justice associated with periods of political change, characterized by legal responses to confront the wrongdoings of repressive predecessor regimes.”7 Teitel’s definition is the broadest of the three, although all focus on the concepts of repressive regime, Teitel and the International Center for Transitional Justice did not limit the idea of what a repressive regime could be.
3 “Transitional Justice Policy Paper Series,” U.S. Department of State, accessed June 22, 2018, https://www.state.gov/j/gcj/transitional/.
4 Anand Giridharadas, “Turning the Call for Racial Reckonings Back on the U.S,” The New York Times, July 18, 2016, https://www.nytimes.com/2016/07/19/us/truth-reconciliation-commission-slavery.html.
5 U.S. Department of State, “Transitional Justice Policy Paper Series.”
6 International Center for Transitional Justice, “What is Transitional Justice?” accessed June 22, 2018, https://www.ictj.org/about/transitional-justice.
The USDS deliberately excluded the United States from the transitional discussion. Not only is this exemplified in the language used in the paper series, but also in the accompanying photographs. Many of the images used throughout the six sections depict explicitly non-American populations. These images include protesters holding signs and wearing clothing in languages that are not English. The policy papers provided no context, captions, or sources for these images:
8
8 Images from left to right, top to bottom, from their respective sections of the policy paper series: USDS TJ Overview, USDS Amnesties, USDS Truth Commissions, USDS Truth Commissions, USDS Amnesties. U.S. Department of State, “Transitional Justice Policy Paper Series.”
These images promote the association of transitional justice with foreign regimes, rather than allow for introspection into the oppressive characteristics of the United States government and historical injustices that have occurred on its soil.
Furthermore, the USDS ignored the instances of the use of transitional justice mechanisms that have occurred in the United States. In the section regarding reparations, the USDS provided six examples of reparative justice: Chilean reparations to victims of the Pinochet regime, Canadian reparations to survivors of the Indian Residential Schools, the ICC’s Trust Fund for Victims, symbolic and collective reparations ordered by the ECCC in Cambodia as judgment against members of the Khmer Rouge, Moroccan community-based reparations for general past abuses, and a formal apology to women victims of the conflict in Sierra Leone.9 In the past, the United States has participated in reparative justice efforts, such as the payment of reparations to individuals that were affected by the Japanese interment during WWII through the Office of Redress Administration that was established in 1988.10 Additionally, the United States has given reparations in the form of cash, land, and tribal recognition to various American Indian tribes. These reparations were given long before 2016, and therefore could have been mentioned in the USDS policy paper series in order to include the United States in the transitional justice discussion.11 Rather than acting as a member of the international community and using their experience with transitional justice mechanisms as a positive example of progress, the USDS purposefully excluded the United States from the conversation. This exclusion is exemplifies the history of United States exceptionalism. The country refuses to acknowledge that issues plaguing the international community occur inside the nation.
United States Exceptionalism
U.S. exceptionalism is largely a twentieth-century phenomenon. It emerged as the United States gained power and status in the international community, but has faintly existed in American consciousness since the country’s founding.12 U.S. exceptionalism is an ideology
9 “Reparations” from the U.S. Department of State, “Transitional Justice Policy Paper Series.”
10 “Search and Compensation and Reparations for the Evacuation, Relocation, and Internment Index (Redress Case Files)” National Archives, accessed June 30, 2018, https://www.archives.gov/research/japanese-americans/redress#ora.
11 Ronald L. Trosper, “American Indian Reparations,” Poverty & Race (November/December 1994), http://www.prrac.org/full_text.php?%20text_id=649&item_id=6623&newsletter_id=17.
12 David Hughes, “Unmaking an Exception: A Critical Genealogy of US Exceptionalism,” Review of International Studies 41 (2015): 528, DOI: 10.1017/S0260210514000229.
that first, supports the notion that America and Americans are unique, immutable, and superior, and second, that the United States has a specific destiny amongst the world’s nations. This concept can be traced back to the 1630s, with governor of the Massachusetts Bay Colony John Winthrop’s sermon “The City Upon a Hill,” which called the newly founded Puritan colony a beacon for the rest of Europe.13 Similarly, in his 1862 State of the Union Address, President Abraham Lincoln mentioned the idea that America was the “last best hope of earth,” and declared the union will be saved and will succeed in a way “which if followed the world will forever applaud and God must forever bless.”14 Throughout American mythology, similar tropes have been perpetuated, exemplified by the idea of the American frontier and manifest destiny. The frontier myth focused on the United States’ “right” to the west, which was signified by military successes over indigenous tribes.15 Historically, the United States viewed itself as a beacon of hope for the world. Because of the geographic isolation of the United States, specifically from Europe, and its wealth and self-sufficiency, the country was able to perpetuate a narrative of exceptionalism.16
Before the World Wars, the United States remained relatively uninvolved in the affairs of the world. This changed slightly after World War I, but the post-World War II era shifted U.S. self-perception. The idea of exceptionalism morphed from one of isolation to one of power. Americans saw themselves as the victors of the Second World War, having defeated the both the German and Japanese enemy on both fronts. This newfound power pushed the U.S. to “embark on a quest to improve the world,” according to scholars Robert G. Patman and Laura Southgate. This caused the United States enter a number of foreign conflicts, from Korea to the Middle East. American exceptionalism became the idea that U.S. democracy was the best form of government, and that it must spread throughout the world.17
In more recent years, U.S. exceptionalism has been challenged by globalization and the representational shift in the distance between geographic borders, which is partially caused by technology alongside a more globalized economy. The decline of the U.S. economy in the new millennium and the increased globalization of society highlighted the
13 “John Winthrop’s ‘City Upon a Hill,’ 1630,” The Gilder Lehrman Institute of American History, accessed June 22, 2018,
https://www.gilderlehrman.org/sites/default/files/inline-pdfs/Winthrop%27s%20City%20upon%20a%20Hill.pdf.
14 Abraham Lincoln, “Second Annual Message,” December 1, 1862, The American Presidency Project, accessed June 22, 2018, http://www.presidency.ucsb.edu/ws/?pid=29503.
15 Richard W. Slatta, “Making and Unmaking Myths of the American Frontier,” European Journal of American Culture 29, no. 2 (2010): 83-84. DOI: 10.1386/ejac.29.2.81_1.
16 Robert G. Patman and Laura Southgate, “Globalization, the Obama Administration and the Refashioning of US Exceptionalism,” International Politics 53, no. 2 (January 2016): 221-23, DOI:10.1057/ip.2015.48. 17 Ibid., 224-25.
difference in values of American versus other Western democracies. The 9/11 attacks on the United States presented an opportunity for President George W. Bush to push an agenda of U.S. exceptionalism with little criticism, on the grounds that the war on terrorism was an attack on American values. Unfortunately, the war was costly, led to the 2008 financial crisis, and contributed a political shift that ended in the election of President Barack Obama. Unlike previous presidents, Obama was pro-globalization, but still supported a narrative of exceptionalism. Within the past ten years, American exceptionalism developed from an ideology of America as unique and powerful to America as resilient and dynamic. “The Obama administration believes that history is on America’s side.”18 According to this idea, history will always support the United States, and the U.S. will prove to be successful in destroying any threats to its livelihood, specifically terrorism and anti-western ideologies. Thus, the concept of U.S. exceptionalism enabled the United States to continue to adopt the identity of uniqueness based on the capitalist and democratic nature of society, while simultaneously becoming an active member of the international community. The USDS transitional justice policy papers are exemplary of the Obama-era concept of American exceptionalism—the United States is willing to support the international community on their quest for improving and unifying the world, but unwilling to allow the international community to interfere with American affairs.
Transitional Justice and the United States
By choosing to exclude itself from the discussion of the international community and transitional justice, the U.S. government is able to ignore the history of human rights abuses that occurred on its own soil. Although there are many issues facing American society that can benefit from transitional justice mechanisms, this thesis will focus on the issues that remain unconfronted from American slavery (1619-1865), Jim Crow (1877-1954), and entrenched racism that currently affect the African American population. To frame this discussion, three major eras will be examined for their efforts to correct historical wrongs: Reconstruction (1865-1877), Civil Rights (1954-1968), and post-Civil Rights (1968-2018). These three points in American history represent turning points in racial policy and relationships in the United States that were accompanied by legal action taken to address past atrocities.
18 Patman and Southgate, “Globalization, the Obama Administration and the Refashioning of US Exceptionalism,” 221.
The first era in American history that had the opportunity to confront the issues of slavery was Reconstruction. Reconstruction began immediately following the end of the Civil War in 1865 and lasted until 1877. This era is marked by U.S. military occupation of the South, and the transition to reuniting the country. During Reconstruction, legislators faced the question of what to do with the newly freed slave population. Former slaves had no homes, land, money, or education. The government responded to these issues in a number of ways. First, the Freedmen’s Bureau was created to assist the needs of freed slaves in establishing new lives by providing food, clothes, medical care, legal support, and temporary shelter. Legislative measures such as the Reconstruction Act of 1867 provided universal male suffrage and, notably, required the Southern states to ratify the 14th Amendment. The 13th, 14th, and 15th Constitutional Amendments were ratified during the era of Reconstruction, which abolished slavery, provided citizenship rights, and universal male suffrage to the freed population respectively. Other measures such as the establishment of a public school system, taxation legislation, anti-discrimination laws, and economic development programs were also a part of Reconstruction efforts. The progress of Reconstruction was largely lost after 1877, and not addressed for almost another hundred years.19 The history of slavery and the era of Reconstruction will be examined in chapter two.
The years following Reconstruction is known as the era of Jim Crow. In this thesis, Jim Crow will be defined as the years between 1877 and 1954, beginning at the end of Reconstruction and ending with the Brown v. Board of Education court decision. Jim Crow is the second major era of racial injustice following slavery. The term “Jim Crow” refers to laws that prevented the integration of mainly Southern society after Reconstruction. The name “Jim Crow” originated from a song of the same name in the early nineteenth century. The narrator of the song is a male black character (his true identity is unclear), and is commonly considered one of the first black minstrel characters, a caricature of an African American portrayed by a person in black face paint.20 This era consisted of legalized segregation, forced labor, housing inequality, violence, the erection of Confederate memorials, and voter suppression. The later decades of Jim Crow, from the late 1920s to post-World War II saw a development of interest in African American culture through music and art, as well as a
19 Gregory P. Downs and Kate Masur, “The Era of Reconstruction, 1861-1900: A National Historic Landmarks Theme Study,” National Park Service, U.S. Department of the Interior, The National Historic Landmarks Program, 2017, https://www.nps.gov/nhl/learn/themes/Reconstruction.pdf.
20 David Pilgrim, “What Was Jim Crow,” Jim Crow Museum of Racist Memorabilia at Ferris State University, accessed June 30, 2018, https://ferris.edu/HTMLS/news/jimcrow/what.htm.
David Pilgrim, “Who Was Jim Crow,” Jim Crow Museum of Racist Memorabilia at Ferris State University, accessed June 30, 2018, https://ferris.edu/HTMLS/news/jimcrow/what.htm.
questioning of morals that emerged after the defeat of fascism.21 The United States had a
second chance of addressing the injustice of racial oppression during the Civil Rights Movement, which emerged in the 1950s-60s and led to the demise of Jim Crow law. The Civil Rights Movement began with the Supreme Court case Brown v. Board of Education, which ruled that segregation was not constitutionally legal.22 For this thesis, the end of Civil Rights will be marked with the passage of the Fair Housing Act of 1968. Overall, the Civil Rights Movement saw political activism and legislative change to address the issues of racism, through the Civil Rights Acts of 1957 and 1964, the Voting Rights Act of 1965, and the Fair Housing Act of 1968. Both Jim Crow and the Civil Rights movement will be explored in chapter three.
The post-Civil Rights era, 1968 to 2018, is a complicated one. It has dealt with a plethora of racial issues, but ones that are less concrete. These problems are more the result of institutionalized racism rather than positive legal forms of oppression. Police brutality, high incarceration rates, and a significant wage gap are all issues that plague the black community. Addressing history of racial problems is a key factor that differentiates the modern era from Reconstruction or Civil Rights. A discussion regarding the payment of reparations for slavery has circulated for years, but has been tabled in Congress.23 Bill H.R.40, which calls for a commission to discuss the payment of reparations to the black community, has been introduced to Congress numerous times. Reparations do not have to occur solely as payments to individuals, but can be implemented as educational funding or the subsidies for African American businesses.24 Other transitional justice mechanisms such as truth and reconciliation
commissions have been used in cities like Greensboro, North Carolina to address past racially charged crimes. The post-Civil Rights era has also seen an increase in diversity in politics, culminating in 2008 with the election of the first African American President, Barack Obama, and an apology for slavery and Jim Crow issued by the House of Representatives.25 Post-Civil Rights America has seen the removal of confederate monuments, commemorations for the victims of slavery and lynching, museums dedicated to African American history, and movies and television shows of slave narratives such as 12 Years a Slave. This era has also
21 Downs and Masur, “The Era of Reconstruction, 1861-1900.” 22 Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).
23 U.S. Congress. House, Commission to Study and Develop Reparation Proposals for African-Americans Act, H.R. 40, 115th Cong, introduced in House March 8, 2018, https://www.congress.gov/bill/115th-congress/house-bill/40.
24 J. Douglas Allen-Taylor, “Reparations,” Race, Poverty & the Environment 16, no. 1 (Spring 2009): 34, http://www.jstor.org/stable/41554921.
25 Danny Lewis, “Five Times the United States Officially Apologized,” Smithsonian Mag, May 27, 2016, https://www.smithsonianmag.com/smart-news/five-times-united-states-officially-apologized-180959254/.
seen a rise in white supremacist activity, the gutting of the Voting Rights Act, and increased media attention on the murders of unarmed African Americans by police officers.26 The racial
environment of the modern era and applications of transitional justice mechanisms will be discussed in chapter four.
Why Should the U.S. Embrace Transitional Justice?
The modern era coexists with the era of transitional justice. If pushed by a public motivation to confront history, the United States has the opportunity to utilize transitional justice mechanisms to address the past of slavery, discover the link from the history to the present in regards to racial tension, and work toward an inclusive future. This thesis will explore each era in detail and focus on five major themes that have been outlined above: the unconfronted history of slavery and legalized racial oppression, prevailing institutionalized racism, American exceptionalism and the country’s duty to its citizens in a globalized world, the use of restorative justice and transitional justice mechanisms to address the history of racial injustice, and the lack of government acknowledgement of victims of slavery and racial conflict. By acknowledging slavery as the root cause of racism in America, the United States would validate the suffering and oppression it has imposed upon the black population.
26 Jim Rutenberg, “What’s Left of the Voting Rights Act?” The New York Times, August 5, 2015, https://www.nytimes.com/2015/08/04/magazine/whats-left-of-the-voting-rights-act.html.
Chapter Two
Slavery to Reconstruction: What Does It Mean to be Free?
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.27
The Declaration of Independence, one of the founding documents of the United States of America, is a symbol of freedom that is integral to the country’s identity. However, whilst the founders declared their freedom from British rule, they simultaneously denied the freedom of entire populations of people. Ironically, the Declaration of Independence was written thirty-one years before the end of the African slave trade (1808), eighty-nine years before the ratification of the 13th Amendment and the abolishment of slavery (1865), one hundred and forty-four years before the ratification of the 19th Amendment and women’s suffrage (1920), and one hundred and forty-eight years before Native Americans were granted American citizenship (1924). Thus, the concept of “freedom” had only been a reality for the white, male population of the United States for a majority of its history.
Slavery, although widely considered an institution of the antebellum American South, was essential to the entirety of society. Alongside the physical contributions of unpaid labor, raw materials for industry, and financial investment, slavery contributed to the racialization of the United States. The same leaders who denied freedom and humanity to an entire population of slaves promoted the concepts of freedom and humanity that drove the American Revolution. Thomas Jefferson famously owned slaves, as well as Benjamin Franklin and George Washington. Although these men participated in the slave economy, they understood that it was contradictory to their ideals of freedom. Benjamin Franklin became a major supporter of the abolitionist movement, and George Washington attempted to emancipate his slaves upon the death of his wife, Martha.28 Thomas Jefferson even addressed the issue of slavery in his first draft of the Declaration of Independence among the list of accusations against King George:
He [the King] has waged cruel war against human nature itself, violating its most sacred rights of life & liberty in the persons of a distance people who never offended
27 “Declaration of Independence,” National Archives, accessed June 30, 2018, https://www.archives.gov/founding-docs/declaration-transcript.
28 “Slavery and the Abolition Society,” Benjamin Franklin History, accessed June 30, 2018, http://www.benjamin-franklin-history.org/slavery-abolition-society/.
“Status of Slaves in Washington’s Will,” George Washington’s Mount Vernon, accessed June 30, 2018, http://www.mountvernon.org/digital-encyclopedia/article/status-of-slaves-in-washingtons-will/.
him, captivating & carrying them into slavery in another hemisphere, or to incur miserable death in their transportation thither…determined to keep open a market where MEN should be bought & sold, he has prostituted his negative for suppressing every legislative attempt to prohibit or to restrain this execrable commerce: …he is now exciting those very people to rise in arms among use, and to purchase that liberty of which he has deprived them…”29
This entire passage was ultimately removed from the final draft, leaving the concept of freedom and to whom it applied largely undefined.
Regardless of the intention of the founders of the United States, or who was at fault for the institution of slavery itself, it nonetheless persisted. Slavery increasingly became a polarizing aspect of society while simultaneously becoming more entrenched in the functions of country. Ultimately, the fight over slavery erupted in 1861 with the outbreak of the Civil War. Although the direct causes of the Civil War are debated, slavery is an inextricable factor, beginning with the explicit disenfranchisement of the African slave population in the United States Constitution.
The Constitutional Preservation of Slavery
After the American Revolution, the newly independent states drafted their own constitutions. A number of Northern states adopted emancipation plans, including Pennsylvania (1780), Rhode Island (1784), New York (1799), and New Jersey (1804). The issue of slavery proved to be a dividing line during the Constitutional Convention of 1787. A founding father, Patrick Henry, the governor of Virginia and famed for his declaration of “Give me liberty or give me death,” feared a powerful central government might interfere with the institution of slavery. He was concerned over the omission of a clause that secured slaves as property, and worried the central government might attempt to force emancipation by levying heavy taxes on slaves.30 Thus, compromises were made in order to gain the votes needed for ratification from the North and the South. The ratification of the Constitution created a tension between the North and the South, and ultimately divided Southern agrarian society from Northern industrial society.31
29 “Jefferson’s ‘Original Rough Draft’ of the Declaration of Independence,” The Papers of Thomas Jefferson, accessed July 30, 2018, https://jeffersonpapers.princeton.edu/selected-documents/jefferson%E2%80%99s-%E2%80%9Coriginal-rough-draught%E2%80%9D-declaration-independence.
30 Louis P. Masur, The Civil War: A Concise History, New York: Oxford University Press, 2011, 3. 31 Ibid., 2.
Although the word “slave” never appears in the Constitution, Article 1, section 2 explicitly referred to the institution of slavery.32 This clause, commonly and henceforth
referred to as the Three-Fifths Compromise, established enslaved people as “three-fifths” of a person, essentially “less than” their free counterparts. Slaves were thus considered sub-human, but not entirely non-human. The inclusion of their population was necessary in order to keep Congressional representation of the Southern states influential, without having to enfranchise the slave population. Article 1, section 9 of the Constitution addressed the issue of the African Slave Trade and the importation of slaves themselves as another compromise between the North and the South. Essentially, this clause prevented federal limitations on the slave trade before 1808. Again, the term “slave” was not used, but the institution is referred to as the “importation of such persons.”33 This coded language highlighted the tension surrounding the issue of slavery. In 1807, the Act to Prohibit the Importation of Slaves was introduced into Congress, effectively making it illegal to “import or bring into the United States or the territories thereof from and foreign kingdom, place, or country, any negro, mulatto, or person of color, with intent to hold, sell, or dispose of…as a slave” beginning January 1, 1808.34
To further ensure that the Northern states did not completely dictate the institution of slavery, Article 4, section 2 prevented a non-slave holding state to grant freedom to a slave that has escaped from a slave-holding state.35 This clause prevented the legal freedom of slaves through escape, thus legally removing any remaining agency from the enslaved person, furthering solidifying their status as sub-human. Overall, the clauses referring to slavery in the U.S. Constitution mark the institutionalization of race in the United States. After the elimination of the African Slave Trade, slaves were no longer African migrants. Any slave born into servitude was henceforth born on American soil, and could be considered a citizen,
32 “Representative and direct Taxes shall be apportioned among the several States which may be included in 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 the Indians not taxed, three fifths of all other Persons.” Masur, The Civil War, 2.
33 “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 one thousand eight hundred and eight, but a Tax or duty may be imposed on such Importation, not exceeding ten dollars for each Person.” “The Constitution of the United States,” National Archives, accessed June 30, 2018,
https://www.archives.gov/founding-docs/constitution-transcript.
34 An Act to Prohibit the Importation of Slaves into any Port of Place within the Jurisdiction of the United States, from and after the First day of January, in the Year of our Lord, One Thousand Eight Hundred and Eight (1810), http://hdl.loc.gov/loc.rbc/rbpe.22800200.
35 “No Person held to Service of Labour 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 Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” National Archives, “The Constitution of the United States.”
except for their status as a slave and their skin color, preserving them as only three-fifths of a human being.
From Compromise to Civil War
As the country began to expand after the purchase of the western lands of the Louisiana Territory in 1803, the issue of slavery expanded both geographically and politically. These tensions came to a climax in 1819, when Missouri pushed for admission into the Union. Anti-slavery legislators wanted to restrict additional slaves from entering the territory, which caused a legislative battle between the two sides. The issue was only resolved when Maine filed for statehood, thus allowing the compromise of admitting one slave state and one free state.36 This law, known as the Missouri Compromise and passed in 1820, prohibited slavery in the Louisiana Territory north of the 36° 30´ latitude line, with the exception of Missouri and all previous slave-holding states.37 The Senate vote for the Missouri Compromise was not unanimous, it was split down the middle: the South in favor, the North against. Thus, the Missouri Compromise deepened the divide between the North and the South, and served as a line between them, from the Mississippi River to the Pacific Ocean.38
The argument surrounding slavery was so fierce that the House of Representatives passed a resolution called the Gag Rule in 1836, which “tabled” the discussion of slavery. The Gag Rule prevented any issues regarding slavery to be heard in Congress.39 Southerners
promoted the idea that slavery was a positive institution, one that upheld white supremacy and could unite the White south. In Virginia, “one legislator proclaimed that the slaves ‘are as happy a laboring class as exists upon the habitable globe…contended, peaceful, and harmless.’”40 The years leading up to the Civil War allowed this narrative to take hold in the South, while the oppositional abolitionist movement was gaining momentum in the North.
Pressure rose over the course of twenty years, and eventually slavery had to be addressed again in 1850 when California was admitted to the Union as a non-slaveholding state. This caused an imbalance of slave and free states, and Southern legislators were afraid
36 Masur, The Civil War, 5.
37 “Missouri Compromise,” Library of Congress, accessed June 30, 2018, https://www.loc.gov/rr/program/bib/ourdocs/Missouri.html.
38 Masur, The Civil War, 5.
39 John Quincy Adams, Responding to the Gag Rule in the House of Representatives, May 25, 1836, National Archives, accessed June 30, 2018,
https://www.archives.gov/exhibits/treasures_of_congress/text/page10_text.html. 40 Masur, The Civil War, 7.
that it would upset the balance of the Missouri Compromise. To quell the worries of the Southern legislators, the Fugitive Slave Act was introduced by Senator Henry Clay and subsequently adopted by Congress.41 The Fugitive Slave Act was an amendment of a 1793 act titled “An Act respecting Fugitives from Justice, and Persons escaping from the Service of their Masters.” The Fugitive Slave Act increased the power and number of commissioners responsible for the return of escaped slaves, and subjected anyone who assisted in the escape, harboring, or concealment of fugitive slaves to fines and imprisonment.42 The Fugitive Slave Act only furthered the tensions between the pro-slavery and abolitionist parties. An image published in New York by Hoff & Bloede highlights the dissenting opinions from the abolitionist party:
43
The image shows a group of well-dressed black men, most likely freedmen, being attacked by a group of white men. Underneath the photo are two quotes, the first from Deuteronomy, “Thou shalt not deliver unto the master his servant which has escaped from his master unto thee. He shall dwell with thee. Even among you in that place which he shall choose in one of
41 Masur, The Civil War, 11-12.
42 Congressional Document, Session 1, Ch. 60, http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=009/llsl009.db&recNum=489
43 “Effects of the Fugitive Slave Law,” Hoff & Bloede, 1850, Library of Congress, accessed June 30, 2018, http://www.loc.gov/pictures/item/2008661523/.
the gates where it liketh him best. Thou shalt not oppress him.” The second quote is from the Declaration of Independence, “We hold that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are life, liberty and the pursuit of happiness.”44 This image suggests that the effects of the Fugitive Slave Act will be the murder of black men, regardless of whether they are free or enslaved, and should be considered a violation of the founding values of the United States.45
The remaining decade after the Compromise of 1850 widened the rift between Northern abolitionists and Southern pro-slavery legislators to a critical tipping point. The election of Republican President Abraham Lincoln proved to be the ultimate trigger that divided the North and the South. The election gave the extreme pro-slavery supporters in the South their opportunity to remove themselves from the Union. One Atlanta newspaper stated, “The South will never submit to such humiliation and degradation as the inauguration of Abraham Lincoln.”46 South Carolina, the first state to leave the Union, seceded on December 20, 1860. Six more states followed suit—Mississippi, Louisiana, Florida, Georgia, Alabama, and Texas—before the outbreak of the war on April 12, 1861. Afterward, the remainder of the Confederate states followed—Virginia, Arkansas, North Carolina, and Tennessee.
Historian Louis P. Masur stated in his book The Civil War: A Concise History, “Some Northerners said let them go, but that would have meant the end of the experiment in democratic government.”47 Masur was essentially correct, historians widely agree that President Lincoln’s primary motivation for refusing to acknowledge the secessions as legal was the preservation of the Union, not the abolition of slavery. Abolition was not on the war agenda until the issuing of the Emancipation Proclamation on January 1, 1863. The Emancipation Proclamation granted freedom for “all persons held as slaves within any State or designated part of a State, the people whereof shall then be in rebellion against the United States, shall be then, thenceforward, and forever free.”48 Thus, it only applied to the states of the Confederacy, who did not consider themselves under the jurisdiction of the United States government, and did not apply to the slave holding states that were still in the Union. After four years of intense fighting, the Civil War officially came to an end on May 6, 1865, and slavery was abolished in the United States with the ratification of the 13th Amendment on December 6, 1865.
44 “Effects of the Fugitive Slave Law,” http://www.loc.gov/pictures/item/2008661523/. 45 Masur, The Civil War, 14.
46 Ibid., 19. 47 Ibid., 19.
48 “The Emancipation Proclamation,” National Archives, accessed June 30, 2018, https://www.archives.gov/exhibits/featured-documents/emancipation-proclamation.
Emancipation and Reconstruction (1865-1877)
Following the end of the war, another set of conflicts regarding race arose. The conflict mutated from one between abolitionists and supporters of slavery to one between the white population and the newly freed black population. This conflict was highly visible in the Southern states, but also manifested in the Northern and Western states. First and foremost, the abolition of slavery was not something that was universally supported by constituents throughout the North and the South. After the ratification of the 13th Amendment, the issue of suffrage for the freedmen was resisted considerably, even among the radicals. For example, prominent abolitionists such as William Lloyd Garrison and Horace Greely did not support suffrage or full citizenship rights for freed slaves. Ultimately, liberals pushed for the voting rights of black men because they were worried that the population increase in the South would boost the political power of the Southern conservatives without the neutralizing factor of the black vote.49 After much debate on the issue, the 14th Amendment in 1868, which granted citizenship rights to the freed slaves, and the 15th Amendment in 1870, which granted full voting rights to men regardless of “race, color, or previous condition of servitude,” enfranchised the black, male population of the United States, were ratified.50
After the war, the country had to be reunited. While the question of what to do with the freed population hung over legislators, a second issue concerned whether or not to punish the Southern states that had rebelled. President Lincoln and President Johnson’s idea of Reconstruction was less about punishing the South than it was about reuniting the country, whereas liberal legislators pushed for more punitive measures. This Congressional reconstruction, known as Radical Reconstruction, began in 1867 and ended in 1877. Radical Reconstruction was not only designed to punish the Southern states, it also encouraged railroad construction and established public schools, measures that were supported by Northern and Southern liberals. Supporters of Radical Reconstruction blamed the
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49 Susan Opotow, “‘Not So Much As Place to Lay Our Head…’: Moral Inclusion and Exclusion in the American Civil War Reconstruction,” Soc Just Res 21, (February 2008): 31-33, DOI 10.1007/s11211-007-0061-9.
50 “14th Amendment to the Constitution,” Library of Congress, accessed June 30, 2018, https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html
“15th Amendment to the Constitution,” Library of Congress, accessed June 30, 2018, https://www.loc.gov/rr/program/bib/ourdocs/15thamendment.html.
holding aristocracy for the Civil War, and attempted to play the classes against one another to support Reconstruction and discredit Southern leaders of the Confederacy.51
The term jus post bellum is Latin for “justice post war.” Ruti Tietel explored this concept and its role in global transitional justice, which demands jus post bellum. Post-war justice is necessary for national healing, especially in cases of civil war. A main goal of jus post bellum is to restore the pre-war status quo, which leads to the punishment of the losing side by victors and other forms of peace and justice seeking measures. Teitel highlighted that the course of justice a society chooses to enact largely depends on whether it views the conflict as just or unjust. In regards to modern warfare, she acknowledged, the focus on humanitarian justice is more prominent than it had been in past conflicts. Thus, jus post bellum and transitional justice can be implemented simultaneously.52 In regards to the American Civil War, the jus post bellum is Reconstruction. The United States focused on punitive measures for the formerly Confederate South and humanitarian justice for the freed slaves.
After abolition, the Union enacted few measures to aid the integration of freedmen into society. In January 1865, William T. Sherman issued Field Order No. 15, which ordered the redistribution of Union confiscated lands from South Carolina to Florida, estimating about 400,000 acres of land, to freed black families in 40 acre segments. These lands were to be for black families only, and would create fully autonomous black communities. This order has come to be colloquially known as “40 acres and a mule,” although the mule was not a part of the original order. Lincoln approved the order, and approximately 40,000 freedmen settled on the land. Alas, 40 acres and a mule did not last long. By the fall of 1865 President Andrew Johnson overturned the order and returned the land to the states of South Carolina, Georgia, and Florida.53 Alice Green, a former slave from Georgia, recalled:
It was a long time ‘fore Niggers could buy land for deirselfs ‘cause dey had to make de money to buy it wid. I couldn’t rightly say when schools was set up for de Niggers. It was all such a long time ago, and I never tuk it in nohow.54
51 Mitchell Snay, “Freedom and Progress: The Dilemma of Southern Republican Thought during Radical Reconstruction.” American Nineteenth Century History 5, no. 1 (2004): 100-114. DOI:
10.1080/1466465042000222222.
52 Ruti Teitel, “Rethinking Jus Post Bellum in the Age of Global Transitional Justice: Engaging with Michael Walzer and Larry May,” The European Journal of International Law 24, no. 1 (2013): 335-342. DOI: 10.1093/ejil/cht014.
53 Henry Louis Gates, Jr. “The Truth Behind ’40 Acres and a Mule’” http://www.pbs.org/wnet/african-americans-many-rivers-to-cross/history/the-truth-behind-40-acres-and-a-mule/
54 WPA Narratives, Alice Green, Vol. 4, Georgia, Pt. 2. Manuscript Division, Library of Congress and Prints
and Photographs Division, Born In Slavery : Slave Narratives from the Federal Writers' Project, 1936-1938, Washington, D.C,: Library of Congress, 2001.
Although a considerable number of freedmen experienced the benefits of 40 acres and a mule, a larger majority of freed slaves did not. Overall, the acquisition of land was largely left to the responsibility of former slaves.
Moreover in 1865, Congress established the Bureau of Refugees, Freedmen, and Abandoned Lands, more commonly referred to as the Freedmen’s Bureau. The Freedmen’s Bureau was tasked with assisting in Reconstruction efforts and providing aid to newly freed slaves in the form of food, clothing, medical care, temporary housing, and legal support. They helped protect freedmen from violence and attempted to settle freed slaves on confiscated and abandoned land. Although the Bureau was meant to only last a year, it remained in operation until 1872.55 Unfortunately, much of Reconstruction focused on how to punish the South after the war, not how to help integrate former slaves into society. The success of black communities after the Civil War should be attributed to black communities rather than the United States government.56
Furthermore, Congress enacted two important legislative acts regarding Reconstruction. The first, the Reconstruction Act of 1867, determined the terms to readmit the former Confederate states back into the Union. It divided the Southern states into five military districts that were occupied with Union troops. In order to be readmitted, each state had to write a new constitution that needed to be approved by a majority vote with the new inclusion of African American voters. The Reconstruction Act of 1867 also required each state to ratify the 13th and 14th Amendments in order to regain state recognition and federal
representation in Congress. President Johnson vetoed the act, but Congress overrode the veto, officially marking the beginning of Radical Reconstruction on March 2, 1867.57
The Civil Rights Act of 1875 was the second important legislative measure. Originally introduced in 1870, the Civil Rights Act guaranteed all citizens would have equal access to public accommodations, including theaters, schools, churches, and cemeteries. It forbade states from barring persons of color to serve on juries, and ensured that lawsuits regarding race would be tried in federal courts. After Congressional debate, aspects of the bill regarding school segregation and the extension of the power of the federal government were removed. The modified bill was passed in early 1875, granting equal access to public
55 “NMAAHC Freedmen’s Bureau Transcript Project,” National Museum of African American History and Culture, accessed June 30, 2018, https://nmaahc.si.edu/explore/initiatives/freedmens-bureau-records. 56 Opotow, “‘Not So Much As Place to Lay Our Head…,’ 31.
57 “The Civil War: The Senate’s Story,” United States Senate, accessed June 30, 2018,
accommodations and facilities to every citizen regardless of race or “previous condition of servitude.”58 The fate of this act will be uncovered in chapter three.
Susan Opotow, a social psychologist and justice researcher, examined the issue of justice and moral inclusion in the postwar South and how reconstruction enfranchised and empowered the black community. Opotow argued that “the challenge of the American Civil War Reconstruction was essentially the challenge of moral inclusion: integrating into American society a group of people that had been so far outside the scope of justice that they had been chattel.”59 She outlined inclusionary efforts, but highlighted that many of these were accomplished not by the United States government but by the black communities themselves. Black communities wanted to create a stable life for themselves in the wake of slavery, so they created three important institutions: churches, schools, and benevolent societies. Education was one of the most important goals for black communities. Withholding education was an oppressive mechanism during the slave era, thus education was a key aspect of freedom and independence. Black communities spent more than one million dollars on education, and by the end of Reconstruction in 1877, over six hundred thousand pupils attended black schools.60
Another achievement of the black community was their involvement in politics. Although white Southerners attempted to intimidate black voters through violence and other means, African Americans participated in local, state, and national politics as both voters and elected officials, and was achieved with very little assistance from the white community. The rate of success of black politicians was not seen again until the 2000s.61 By the end of
Reconstruction in 1877, six hundred black legislators and eighteen state officials had served in the South. South Carolina’s legislature achieved black majority at seventy-six percent, Louisiana’s was fifty percent black, and Florida’s was forty percent black. This success is attributed to the protection of black voting rights and the removal of Confederate sympathizers from office as a result of Union military occupation under the Reconstruction Act of 1867.62 Unfortunately, after Reconstruction black enfranchisement diminished. The
58 “Landmark Legislation: Civil Rights Act of 1875,” United States Senate, accessed June 30, 2018, https://www.senate.gov/artandhistory/history/common/generic/CivilRightsAct1875.htm.
59 Opotow, “‘Not So Much As Place to Lay Our Head…’” 29. 60 Opotow, “‘Not So Much As Place to Lay Our Head…’ 31-32.
61 Kristen Bialik and Jens Manuel Krogstad, “115th Congress Sets New High for Racial, Ethnic Diversity,” Pew Research Center, January 24, 2017, http://www.pewresearch.org/fact-tank/2017/01/24/115th-congress-sets-new-high-for-racial-ethnic-diversity/
62 Eric Foner, “South Carolina’s Forgotten Black Politcal Revolution,” Slate, January 31, 2018, https://slate.com/human-interest/2018/01/the-many-black-americans-who-held-public-office-during-reconstruction-in-southern-states-like-south-carolina.html.
United States federal government did not see a black legislator until the election of Edward Brooke of Massachusetts in 1967. The political achievements of the black community were met with hostility from the white community. Terror groups rose, such as the Ku Klux Klan and the Knights of the White Camelia. These groups targeted the leaders of black communities, especially those that were literate such as teachers, in order to cripple community institutions. Violent tactics like lynching were used to terrorize and prevent black men from voting, without much intervention from Northern or “liberal” groups.63
Aditionally, Opotow examined the institutionalization of inclusion. She argued that “Unless inclusion is institutionalized in multiple social institutions so that political, economical, legal, and social inclusion occur at the same time, inclusion can be difficult to sustain.”64 The absence of this institutionalization was a major issue for Reconstruction. African Americans and newly freed slaves were largely absent from the policy decisions and postwar efforts, thus inhibiting their inclusion in American society. Slavery was over, but the oppression of African Americans was not. Slavery transformed into Black Codes and Jim Crow laws post-Reconstruction. These laws inhibited social, political, legal, and economic movement for African Americans, and kept them bound to the lowest social class— essentially preserving the slave class.65 Ultimately, Reconstruction was a failure, but in the current era of transitional justice the efforts of Reconstruction cannot be ignored. Although newly freed slaves were not properly enfranchised in society, Reconstruction was an attempt to change the social stratosphere of the United States and create inclusionary policies. Woefully, racism and white supremacy was present in all aspects of American society after the Civil War. Reconstruction did not address that issue, and it did not succeed.
The Meaning of Freedom
Abolishing slavery was a difficult task for liberal America. Black and white abolitionists worked side by side to push their agenda to the forefront of American politics before and during the Civil War. Regrettably, after the destruction of the institution of slavery, society’s attention to the experiences of former slaves waned. For the North, the Civil War was won,
63 Opotow, “‘Not So Much As Place to Lay Our Head…’ 33-38. 64 Ibid., 42.
65 The Black Codes of 1865 were essentially a replacement for slavery. They required previous enslaved workers to sign labor contracts and allowed for corporal punishment in order to preserve the hierarchy and control over slave gangs. These codes bound the workers’ children to forced labor as well, and limitations were placed on the type of work black people could perform. Opotow, “‘Not So Much As Place to Lay Our Head…’” 43-45.
and the focus shifted to the reintroduction of the South into the Union. For the South, the Civil War was lost, as well as their culture. Economically, emancipation destroyed a $4 billion investment, and the South was not easily willing to forgive that loss.66 Although the Reconstruction Amendments granted freedom, citizenship, and voting rights to the black population, the former slave-owning class of the South was not readily willing to give up their source of free labor. Because most slaves in the South lived in rural areas and were largely illiterate, a number of them did not even know they were free. One former slave from Arkansas, John Payne, recalled:
From what Mama said they didn’t know it was freedom for a long time. They worked on I know till that crop was made and gathered. Somebody sent word to the master, Rev. David, he better turn them slaves loose. Some of the hands heard the message. That was the first they knowed it was freedom. My mama said she seen soldiers and heard fighting. She had heard that if the Yankees won the war all the slaves be free. She set to studyin’ what she would do. She didn’t know what to do. So when she heard it she asked if she had to be free. She told Rev. David that she wanted to stay like she had been staying.67
As Payne recalled, his mother was hesitant about freedom. Freedom was welcomed, but freedom also meant the unknown. Most former slaves had no property or money, thus the acquisition of land and traveling from the plantations were both obstacles to overcome. Much of southern land belonged to a few members of the white upper class—many middle and lower class white men did not own property. As for the land in the Western territories, much of it still belonged to Native American tribes, had been used for the creation of reservations, or given to railroad, lumber, and mining companies.68 Former slaves who were lucky enough
to benefit from 40 acres and a mule held to their land for as long as possible, some families passing it down for generations to the 1990s.69
The end of Reconstruction introduced the concept of Redemption and the era of Jim Crow, which lasted until 1954. Redemption focused on returning state control to the conservative party, essentially to “redeem,” or revert, the South back to its pre-war status.70 During Jim Crow, white Southern leaders reversed almost everything achieved under Reconstruction, and gave birth to the romantic memory of the antebellum South, largely
66 Opotow, “‘Not So Much As Place to Lay Our Head…’” 30. 67 WPA Narratives, John Payne, Vol. 2, Arkansas, Pt. 5
68 Opotow, “‘Not So Much As Place to Lay Our Head…’” 36-37.
69 Lisa C. Jones, “40 Acres and a Mule Revistited: Mississippi Farm Family Fights the Mounting Odds,” Ebony, August 1993.
70 Marek D. Steedman, “Resistance, Rebirth, and Redemption: The Rhetoric of White Supremacy in Post-Civil War Louisiana,” Historical Reflections/Réflexions Historiques 32, no. 1: (Spring 2009): 101,
represented by the Lost Cause myth. The Lost Cause “sacralized the Southern way of life,” and compared the suffering of Southerners after the war to the suffering of a chosen people. Southerners were forced to concede their cause of the preservation of the antebellum way of life, but the Lost Cause allowed them to celebrate and commemorate the Confederacy and established a foundation of conservatism that defines the South to the present day.71 This New South wished longingly for the Old South: a fictional society of gentlemen, ladies, and happy slaves.
71 Leslie Butler, “Reconstructions in Intellectual and Cultural Life,” in Reconstructions, ed. Thomas J. Brown (New York: Oxford University Press, 2006), 172-206.
