Skip to main content Accessibility help
×
Home
  • Print publication year: 2015
  • Online publication date: February 2015

4 - The Federal Government and the Reconstruction of the Legal Order

Summary

Tennessee had been exempted from the Emancipation Proclamation, as had parts of the Confederacy occupied by U.S. troops in 1863. Slavery did not end in those states or in slave states that had remained in the Union until they adopted new constitutions that prohibited slavery or the Thirteenth Amendment’s ratification resolved the issue for them. Tennessee approved a new constitution with provisions to end slavery in February 1865, before the Confederacy surrendered. But the end of slavery did not end the problems faced by those who had once been enslaved. With Tennessee’s new constitution, wrote a group of African Americans from the state, we “became formally and legally free, our prayers were answered, and the secret hopes of our hearts were realized.” The problem was that the legislature “failed, as we think, to pass the necessary laws, to recognize our standing, and secure to us by law, our rights as freemen.” They continued, “As we are now the old slave laws of the State remaining unrepealed, and the oath of the colored man not being received by our Courts, as against the whites, we have no where to look for protection, save to the United States Authority.” “In those authorities,” they wrote, “we have the fullest confidence: but we want some way of easily bringing our cases before them.”

Therein lay the problem. The federal government’s jurisdiction did not extend to matters of the kind that plagued this group of African Americans. In fact, the states’ broad authority over the legal status of the American people – the issue that brought the nation to war – remained unchanged, despite everything that had happened between 1860 and 1865. It was not just an issue for African Americans who lived in the former Confederacy. It was an issue all over the United States, where states and localities routinely restricted the rights of African Americans, all women, and a range of other racial, ethnic, and religious minorities as well. That situation, once accepted without comment, appeared increasingly problematic because of the national vision pursued by Republican Party leaders during the Civil War.

Harris, William C., With Charity for All: Lincoln and the Restoration of the Union (Lexington, KY, 1997
Belz, Herman, Reconstructing the Union: Theory and Policy during the Civil War (Ithaca, NY, 1969
Foner, Eric, Reconstruction: America’s Unfinished Revolution (New York, 1988), pp. 232–3
Wiecek, William M., The Guarantee Clause of the U.S. Constitution (Ithaca, NY, 1972
Aynes, Richard L., “On Misreading John Bingham and the Fourteenth Amendment,” Yale Law Journal 107 (1993): 57–104
Lash, Kurt T., “The Origins of the Privileges and Immunities Clause, Part 1: ‘Privileges and Immunities’ as an Antebellum Term of Art,” Georgetown Law Journal 98 (2010): 1241–1302
Lash, Kurt T., “The Origins of the Privileges and Immunities Clause, Part II: John Bingham and the Second Draft of the Fourteenth Amendment,” Georgetown Law Journal 99 (2011): 329–433
Hamburger, Phillip, “Privileges or Immunities,” Northwestern University Law Review 105 (2011): 61–148
Kaczorowski, Robert J., “Searching for the Intent of the Framers of the Fourteenth Amendment,” Connecticut Law Review 5 (1972–3): 368–98
Escott, Paul D., Many Excellent People: Power and Privilege in North Carolina, 1850–1900 (Chapel Hill, NC, 1985
DuBois, Ellen Carol, Feminism and Suffrage: The Emergence of an Independent Women’s Movement in America, 1848–1869 (Ithaca, NY, 1978
Smith, Stacey, Freedom’s Frontier: California and the Struggle over Unfree Labor, Emancipation, and Reconstruction (Chapel Hill, NC, 2013
Montgomery, David, Beyond Equality: Labor and the Radical Republicans, 1862–1872 (New York, 1967
Nedelsky, Jennifer, Private Property and the Limits of American Constitutionalism (Chicago, 1990
Banner, Stuart, How the Indians Lost Their Land: Law and Power on the Frontier (Cambridge, MA, 2005
Garrison, Tim Alan, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (Athens, GA, 2002
Montoya, Maria, Translating Property: The Maxwell Land Grant and the Conflict over Land in the American West, 1840–1900 (Berkeley, 2002
Robertson, Lindsay G., Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (New York, 2005
Turner, Frederick Jackson, The United States, 1830–1860: The Nation and Its Sections (New York, 1935