A. Slavery

From the earliest days of the slave markets of Virginia in 1619, to the economic disadvantages and disproportionately-skewed criminal justice system of 2018, a persistent, deeply-rooted systemic racism has worked, without interruption, to oppress people of color on this continent.

Slavery in North America was a 250-year nightmare of unimaginable proportions for black folks. Husbands and wives were regularly separated from each other and their children after being sold to different masters. Ta'Nehisi Coates elaborates:

Forced partings were common in the antebellum South .... Twenty-five percent of interstate trades destroyed a first marriage, and half of them destroyed a nuclear family.

When the wife and children of Henry Brown, a slave in Richmond, Virginia, were to be sold away, Brown searched for a white master who might buy his wife and children to keep the family together. He failed:

The next day, I stationed myself by the side of the road, along which the slaves, amounting to three hundred and fifty, were to pass. The purchaser of my wife was a Methodist minister, who was about starting for North Carolina. Pretty soon five wagon-loads of little children passed, and looking at the foremost one, what should I see but a little child, pointing its tiny hand towards me, exclaiming, "There's my father; I knew he would come and bid me good-bye." It was my eldest child! Soon the gang approached in which my wife was chained. I looked, and beheld her familiar face; but O, reader, that glance of agony! may God spare me ever again enduring the excruciating horror of that moment! She passed, and came near to where I stood. I seized hold of her hand, intending to bid her farewell; but words failed me; the gift of utterance had fled, and I remained speechless. I followed her for some distance, with her hand grasped in mine, as if to save her from her fate, but I could not speak, and I was obliged to turn away in silence.

In a time when telecommunications were primitive and blacks lacked freedom of movement, the parting of black families was a kind of murder. Here we find the roots of American wealth and democracy--in the for-profit destruction of the most important asset available to any people, the family. The destruction was not incidental to America's rise; it facilitated that rise. By erecting a slave society, America created the economic foundation for its great experiment in democracy.

Folks were routinely beaten to force compliance, resulting in lasting scars and injuries and, not infrequently, death. Slavery "was not merely the antiseptic borrowing of labor," Coates explains in his book, Between the World and Me, but also "rape so regular as to be industrial. There is no uplifting way to say this."


1. 1600s and early-1700s

In the early colonial days, race was not the defining characteristic of the ill-treated subjugated classes. "In the early years of slavery," Howard Zinn explains, "before racism as a way of thinking was firmly ingrained, ... white indentured servants were often treated as badly as black slaves, [thus leading to] a possibility of cooperation" between black slaves and white servants. Historian Edmund Morgan, in his voluminous studies of slavery in Virginia, notes:

There are hints that the two despised groups saw each other as sharing the same predicament. It was common, for example, for servants and slaves to run away together, steal hogs together. It was not uncommon for them to make love together. In Bacon's Rebellion, one of the last groups to surrender was a mixed band of eighty negroes and twenty English servants.

White masters, "initially at least, perceived slaves in much the same way they had always perceived servants ... [as] shiftless, irresponsible, unfaithful, ungrateful, [and] dishonest," Morgan explains. "Only one fear was greater than the fear of black rebellion in the new American colonies," Zinn elaborated. "That was the fear that discontented whites would join black slaves to overthrow the existing order."

The white ruling class therefore took action. First, the Virginia Assembly passed slave codes authorizing discipline and punishment for slaves. Around the same time, Zinn recounts, "Virginia's ruling class, having proclaimed that all white men were superior to black, went on to offer their social (but white) inferiors a number of benefits previously denied to them." A law was passed in 1705 "requiring masters to provide white servants whose indenture time was up with ten bushels of corn, thirty shillings, and a gun, [while guns were banned to blacks, and] women servants were to get 15 bushels of corn and forty shillings. Also, the newly freed servants were to get 50 acres of land." Morgan adds, "Once the small planter felt less exploited by taxation and began to prosper a little, he became less turbulent, less dangerous, more respectable. He could begin to see his big neighbor not as an extortionist but as a powerful protector of their common interests." In the early years of the 18th century, "the distinctions of status between white and black servants [were becoming] more and more clear."

Then, "[i]n the 1720s, with fear of slave rebellion growing, white servants were allowed in Virginia to join the militia as substitutes for white freemen. At the same time," Zinn explains, "slave patrols were established in Virginia to deal with the great dangers that may ... happen by the insurrections of negroes ....' Poor white men would make up the rank and file of these patrols, and get the monetary reward."

In short, Zinn suggests, "[r]acism was becoming more and more practical ... [as] a realistic device for control." "If freemen with disappointed hopes should make common cause with slaves of desperate hope," Morgan adds, "the results might be [catastrophic] ... [t]he answer to the problem ... was racism, to separate dangerous free whites from dangerous black slaves by a screen of racial contempt."


2. Late 1700s--The Revolution; the Constitution's Protection of Slavery

The Declaration of Independence famously declares the existence of certain self-evident Truths: "[T]hat 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." Inspiring language--but dimmed by the reality that black slaves were never intended to be included among the "all Men" who would possess these natural rights. Indeed, the primary drafter of the phrase, Thomas Jefferson, was himself an active slaveholder and trader, as were forty of his other compatriots who signed the Declaration.

So, black Americans were understandably reticent on the topic of the Revolution. Howard Zinn explains:

Thousands of blacks fought with the British. Five thousand were with the Revolutionaries, most of them from the North, but there were also free blacks from Virginia and Maryland. The lower South was reluctant to arm blacks. Amid the urgency and chaos of war, thousands took their freedom--leaving on British ships at the end of the war to settle in England, Nova Scotia, the West Indies, or Africa. Many others stayed in America as free blacks, evading their masters.

No doubt it is jarring to Americans' sense of their country as "the Land of the Free and Home of the Brave" to understand the Founding Fathers' racist attitudes and practices. It is similarly disconcerting to recognize that the Nation's founding governing document, the United States Constitution, expressly endorsed racist principles when ratified in 1789.

Specifically regarding black Americans, the Constitution in its original formulation, as proposed in 1787 and ratified in 1789, contained four provisions supporting the institution of slavery.

First, Article I, Section 2, clause 3 requires apportionment of the House of Representatives based on the "whole Number of free Persons" and "three fifths of all other Persons." While the representatives of the Northern free states at the Constitutional Convention did not think the Southern slave states should be able to use the fact that they held many thousands of people in human bondage as a way to increase their representation in the new government, in the end they compromised with the southerners, who refused to support the Constitution without this and the other three provisions, by counting every slave as three-fifths of a person.

Next, Article IV, Section 2 contains the Fugitive Slave Clause:

No Person held to Service or 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.

In other words, any efforts by an anti-slave state, such as Pennsylvania, to provide refuge for escaped slaves--legislative or otherwise--would be ineffective.

This provision, along with the Fugitive Slave Act of 1793, was the basis for federal cases striking down Northern states' attempts to aid escaping slaves. In Prigg v. Pennsylvania in 1842, for example, the U.S. Supreme Court struck down two Pennsylvania laws prohibiting the removal of slaves who had escaped into the state. Writing for the Court, Justice Joseph Story reasoned that the very existence of the Union depended on slavery:

The full recognition of this right and title [of ownership of slaves] was indispensable to ... all the slaveholding States; and indeed was so vital ... that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed.

Story continued, "under and in virtue of the constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it, without any breach of the peace or any illegal violence."

In one respect, however, Prigg softened the Fugitive Slave Act, by holding open the possibility for a given state to forbid state officials from assisting in the capture and return of escaped slaves: "[S]tate magistrates may, if they choose, exercise that authority, unless prohibited by state legislation." Even this allowance, though, was foreclosed by Congress less than a decade later with the Fugitive Slave Act of 1850, which "forcibly compelled citizens to assist in the capture of runaway slaves. It also denied slaves the right to a jury trial and increased the penalty for interfering with the rendition process to $1,000 and six months in jail."

For its part, Article I, Section 9, clause 1 prevented Congress from banning the importation of slaves until 1808: "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]." While banning the slave trade at any time-present or future--is laudable, the fact it was allowed to continue at all, for any period of time, is highly problematic from a moral standpoint. It should also be noted that existing slaveholders before 1808 would benefit tremendously from the cessation of the importation of slaves, because overnight their "property" would suddenly become a scarce commodity. Under such circumstances slaveholders would have economic incentives to hoard slaves--especially women, who could reproduce new generations of slaves; and children, who could be expected to live longer beyond 1808 than adult slaves.

Finally, Article V (the Constitution's "how to amend" section) prohibits the Article I 1808 importation provision (described above) from being altered by constitutional amendment--one of only two provisions to be so limited. The fact that the 1808 provision was one of the only two "un-amendable" constitutional provisions indicates just how deeply ingrained the institution of slavery is in America's DNA.

It is understandable, then, that when it comes to America's original sin--the Nation's foundational accommodations to slavery--many regard the Constitution as an immoral "pact with the devil" that never should have happened in the first place. Abolitionist William Lloyd Garrison in 1832 declared:

[W]e recognize the [Constitution], but with feelings of shame and indignation; and it will be held in everlasting infamy by the friends of justice and humanity throughout the world. It was compact formed at the sacrifice of the bodies and souls of millions of our race, for the sake of achieving a political object--an unblushing and monstrous coalition to do evil that good might come .... Who or what were the framers of our government, that they should dare confirm and authorize such high-handed villainy--such a flagrant violation of all the precepts and injunctions of the gospel--such a savage war upon a sixth of our whole population? ... They had no awful power to bind themselves, or their posterity, for one hour--for one moment--by such an unholy alliance. It was not valid then--it is not valid now .... A sacred compact! A sacred compact! What, then, is wicked, and ignominious?

And it is little surprise that the Nation's holidays celebrating freedom and independence have long been met by African-Americans with more than a little ambivalence. Frederick Douglass, speaking at an 1852 Independence Day event of the Ladies of the Rochester [New York] Anti-Slavery Sewing Society, asked:

What, to the American slave, is your 4th of July? I answer: a day that reveals to him, more than all other days in the year, the gross injustice and cruelty to which he is the constant victim. To him, your celebration is a sham; your boasted liberty, an unholy license; your national greatness, swelling vanity; your sounds of rejoicing are empty and heartless; your denunciations of tyrants, brass fronted impudence; your shouts of liberty and equality, how mockery; your prayers and hymns, your sermons and thanksgivings, with all your religious parade, and solemnity, are, to him, mere bombast, fraud, deception, impiety and hypocrisy--a thin veil to cover up crimes which would disgrace a nation of savages. There is not a nation on the earth guilty of practices, more shocking and bloody, than are the people of these United States, at this very hour.


3. The 1800s--Civil War; Emancipation Proclamation; Reconstruction Amendments

Despite the claims of revisionist Southern histories to the contrary, there is little question the formation of the Confederate States of America in 1861 was based on the southern states' desire to maintain the institution of slavery. As Confederate Vice President Alexander Stephens explained in his infamous "cornerstone speech" shortly before the Civil War: "[The Confederacy's] corner-stone rests upon the great truth, that the negro is not equal to the white man; that slavery subordination to the superior race is his natural and normal condition. This, our new government, is the first, in the history of the world, based upon this great physical, philosophical, and moral truth." And Mississippi, when seceding from the Union, stated unequivocally: "Our position is thoroughly identified with the institution of slavery--the greatest material interest of the world."

For his part, Abraham Lincoln, at the beginning of his Presidency and the virtually-simultaneous onset of the Civil War, was equivocal on the issue of slavery. While personally opposed to the practice (stating in the 1850s, "[Slavery is] an unqualified evil to the negro, the white man, and the State"), as a lawyer he understood the Constitution's unqualified support of the States' authority to embrace the institution. Assessing the politics of the day, he doubted the support of moderate Republicans in the North and border-state South for seeking to ban slavery as a basis for prosecuting the War. Accordingly, in his first inaugural address he stated his willingness to allow the institution to continue in the South: "[I have] no purpose, directly or indirectly, to interfere with slavery in the States where it exists."

After nearly two years of War, however, Lincoln's position on the slavery question had evolved; and on September 22, 1862, shortly after the Union's military victory at Antietam, Lincoln signed the Emancipation Proclamation, stating that as of January 1, 1863, all slaves in the rebellious Southern states--3.1 million of the 4 million persons enslaved at the time-- "shall be then, thenceforward, and forever free." In a stroke of a pen, "the stakes of the Civil War shifted dramatically. A Union victory would mean no less than revolution in the South, where the peculiar institution' of slavery had dominated economic, political and social life [for many decades] in the antebellum years."

At roughly the same time as Lincoln signed the Emancipation Proclamation, Congress was discussing amending the Constitution to officially abolish slavery in all of the United States. The first of three "Reconstruction Amendments," the Thirteenth Amendment was finally passed in Congress on January 31, 1865: "Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction." This Amendment, which mooted (or nullified) most of the constitutional provisions described above (e.g., the Fugitive Slave Clause; the 1808 Importation Clause) that had enabled slavery to exist in the United States, was ratified by the requisite three-quarters of the states and became part of the Constitution on December 6, 1865.

Partly in response to Southern intransigence following the War, the Fourteenth Amendment was passed by Congress on June 18, 1866, and ratified by three-quarters of the states on July 9, 1868. Section Two expressly supersedes the Article I three-fifths clause described above: "Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed."

Section One of the Fourteenth Amendment contains the majestic language that forms the core of so many of Americans' guaranteed liberties. It states:

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; nor deny to any person within its jurisdiction the equal protection of the laws.

The first sentence, the Citizenship Clause, guaranteeing that all persons born or naturalized in the United States are citizens, was a direct repudiation of the Dred Scott v. Sandford case, where the Supreme Court held that a slave was not a citizen entitled to sue for his freedom in federal court. The second sentence contains three guarantees against State infringement: privileges and immunities, intended originally to apply the protections contained within the Bill of Rights (the first eight amendments), and more, to the States. This intent was thwarted, however, by the Court's narrow interpretation of the Clause in The Slaughter-House Cases. The second and third protections against State infringement, the Due Process and Equal Protection Clauses, have proven to be substantial (though uneven) sources of protection.

The Fifteenth Amendment, passed by Congress on February 26, 1869 and ratified by the states in February, 1870, protected the right of the freed slaves and their descendants to vote: "The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude." Despite this guarantee, Southern states for many decades were able to prevent massive numbers of people of color from voting, through devices such as poll taxes, literacy tests, and various other intimidation tactics. It was not until after passage of the Voting Rights Act of 1965 that a majority of African-Americans in the South were even registered to vote.

In sum, a common element of the three "Reconstruction Amendments" (the Thirteenth, Fourteenth, and Fifteenth) is that they were all motivated by the decision to end slavery and its manifestations. Notably, the final provision in all three are substantively identical in authorizing Congress the power to enforce the specific provisions of each. The Nation's experience of the first eighty years following the framing of the Constitution had shown that the States could not be trusted to protect the liberties of all, especially people of color, so the Amendments empowered Congress to guarantee those liberties when the States would not.