American Democracy in Context. Joseph A. Pika
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Germany may seem like a particularly harsh comparison, but should any of the steps taken in postwar Germany be applied to the Confederate monument debate in the U.S.? Here, the display of the Confederate battle flag is a common sight. Until 2015, it flew over the state capitol of South Carolina, and it can still appear on special-order, state-issued license plates in several states as part of the Sons of Confederate Veterans logo. Should the battle flag be banned? Should there be more memorials to the victims of slavery and racial violence? Would something similar to stolpersteine make sense here—identifying spots where slaves were sold or where lynchings took place? Should we ban neo-Nazi marches and other forms of hate speech? Should Confederate monuments be removed? If so, all of them? Were all four of the New Orleans monuments equally offensive? Answers to these questions are not easy.
Slavery in America
The struggle for civil rights in the United States—freedom from governmental discrimination (unequal treatment) based on age, gender, race, or other personal characteristics—has affected many groups in the United States. Slavery—sanctioned, however discreetly, by the U.S. Constitution—paved the way for decades of racial discrimination in the United States, and so we start there.
Slavery and the Constitution
The U.S. Constitution did not contain the words slave or slavery, but debates about slavery—by then a firmly entrenched and legally recognized practice—greatly influenced the framers. Slavery, of course, does not comport with the framers’ lofty rhetoric of rights, but the hard truth is that several sections of the Constitution not only recognized but indirectly sanctioned the practice of slavery.
For example, Article I, Section 9, in roundabout language, prohibited Congress from abolishing the importation of slaves until 1808 and empowered Congress to impose a tax or duty “on such Importation, not exceeding ten dollars for each Person.” Article IV, Section 2 contained the so-called fugitive slave clause, which required the return of slaves (those “held to Service or Labour in one State under the Laws thereof”) if they escaped to another state—even one where slavery was outlawed. And the so-called Three-Fifths Compromise of Article I, Section 2, discussed in Chapter 2, allowed each slave to be counted as three-fifths of one person for purposes of representation and taxation. Even the Bill of Rights originally did nothing to protect African Americans because the incorporation of the Bill of Rights—made possible by the ratification of the Fourteenth Amendment in 1868—is mostly a twentieth-century phenomenon (see Chapter 4).
civil rights Freedom from governmental discrimination (unequal treatment) based on age, gender, race, or other personal characteristics.
fugitive slave clause A provision of Article IV, Section 2 of the Constitution that required the return of escaped slaves to their owners even if they fled to a state where slavery was outlawed. Repealed by the Thirteenth Amendment (1865).
Congress outlawed the importation of slaves in 1808, but the legality of slavery itself was a decision left to individual states. Early on, some states, such as Vermont (1777, before it officially entered the Union in 1781), Massachusetts (1780), and New Hampshire (1784) abolished slavery through their state constitutions. But slavery continued to be legal in many states, and slaveholders in those states argued that slaves were property protected by the Fifth Amendment of the U.S. Constitution. (See Figure 5.1 for a chronology of slavery around the world.) Proslavery and anti-slavery forces in Congress agreed on the Missouri Compromise in 1820, which—with the exception of Missouri—banned slavery in new states north of the 36° 30̍ latitude line (see Figure 5.2). But Congress repealed the Missouri Compromise through passage of the Kansas–Nebraska Act of 1854, thereby allowing each territory to decide for itself whether or not to allow slavery.
Figure 5.1 Timeline of the Abolition of Slavery
Source: “Who Banned Slavery When?” Reuters, March 22, 2007, https://www.reuters.com/article/uk-slavery/chronology-who-banned-slavery-when-idUSL1561464920070322
Figure 5.2 The Missouri Compromise, 1820
Source: https://teachingamericanhistory.org/static/neh/interactives/sectionalism/lesson1/
Slavery and the Supreme Court
Proponents of slavery generally embraced states’ rights, but they did champion one aspect of national supremacy: the power of Congress to enforce the fugitive slave clause of the Constitution through legislation such as the Fugitive Slave Act of 1793. This, they argued, prevented states from passing laws, such as one enacted by Pennsylvania in 1826, to protect the due process rights of African Americans. The Supreme Court invalidated the Pennsylvania law in 1842, arguing that the federal government had exclusive power to regulate the return of fugitive slaves.5
A year earlier, the Supreme Court had ruled in favor of 53 Africans who, on the slave ship Amistad bound for Puerto Principe, Cuba, had revolted, killed the captain, and tried to return the ship to Africa but ended up in the United States instead. There, proslavery advocates deemed the men slaves and wanted them tried for mutiny, murder, and piracy. Abolitionists, on the other hand, viewed the men as victims: freemen who had been kidnapped and therefore had a right to resist their captors. The Supreme Court sided with the abolitionists. It freed the Africans and allowed them to return to Sierra Leone.6
The Amistad case was a rare Court victory for abolitionists, who suffered a stinging defeat in Dred Scott v. Sandford (1857), one of the most infamous decisions ever handed down by the Supreme Court. The case involved Dred Scott, who had been born a slave in Virginia and had been sold to an army surgeon, John Emerson, in 1832. Emerson’s military career took him to Illinois and the Wisconsin territory, where slavery was banned. Eventually, while serving in the Seminole War, Emerson left Scott with Emerson’s wife in St. Louis, Missouri. Emerson died in 1843, and Scott tried to purchase his freedom from Mrs. Emerson. She refused, and Scott subsequently sued for his freedom, citing precedents in Missouri case law holding that slaves brought to Missouri after having resided in free states (such as Illinois) or territories were entitled to their freedom.
Chief Justice Roger Taney (left) ruled that Dred Scott (right) and all African Americans were a “subordinate and inferior class of beings” who did not have the right to sue in federal court.
Hulton Archive / Getty Images
The Missouri trial court ruled in favor of Scott, but the Missouri Supreme Court overturned the ruling and abandoned earlier “once free, always free” precedents. The U.S. Supreme Court affirmed that ruling. In so doing, it could have simply declared that the Missouri Supreme Court had the final word on Missouri law. Instead, in an opinion written by Chief Justice Roger B. Taney, the Supreme Court issued a sweeping ruling that deemed African Americans a “subordinate and inferior class of beings” who were—even if they were free blacks—disqualified from U.S. citizenship and therefore unable to sue in federal court.7 Moreover, the Court ruled that Congress had exceeded its authority when it passed the Missouri Compromise and explicitly held that slaves were property whose owners deserved constitutional protection.8
Reaction to the Dred Scott decision was fierce. It crystallized attitudes on both sides of the slavery