Kidada speaks with the professor and historian about how, even though rights being granted to African Americans through the passage of the 13th Amendment and the Civil Rights Act of 1866 was a solid foundation to build from, it was little more than that without enforcement.
They discuss the role Black people played in continuing to organize for equality and justice through Constitutional amendments and persevered even in the face of multiple defeats, as well as how the long battle during Reconstruction paved the way for future civil rights movements through the 1900s and up to today.
Kidada Williams: Hi everyone, it’s Kidada. This is Seizing Freedom, the show where we dig into the archives to bring you stories about how African Americans freed themselves during the Civil War and built new lives during Reconstruction, and where we talk to the historians and artists who know the archives best.
In this episode, I speak with Northwestern University historian Kate Masur, who writes on race and politics in the nineteenth century. She just published a book called “Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction.”
One thing that Kate’s book makes clear is that just because the Declaration of Independence said that all men were created equal did not mean that that was somehow going to be a guiding principle in the United States.
In fact, what we see in the period after the American Revolution is the expansion of slavery and the growth of anti-Black laws in the South, in the North, and in new free states as they came into the Union.
Since federal policy didn’t guarantee equality, it was up to activists in the earliest civil rights movements to fight for it. In addition to rights like the right to hold property, to sue in court, or to move freely from state to state, free African American activists wanted their rights guaranteed by citizenship.
KW: Before we can understand what African-Americans were asking for by asking for their citizenship and other civil and political rights to be recognized, we need to understand what U.S. citizenship entailed. So, what did U.S. citizenship look like before the Civil War? Who had it and why? And what–if anything–did it guarantee, and to whom?
Kate Masur: I mean, this is a really complicated question. There’s no straightforward answer. There wasn’t a unified idea of citizenship in the United States. And one of the things that I think is important to emphasize is that many Americans saw citizenship as a state status, not a federal status.
And so you have citizenship operating on a lot of different levels. You have ideas about federal citizenship, for example, when it came to international relations or it came up in terms of sailors who were on the high seas, if sailors were captured by other countries, they began in the right after the American Revolution to be issued certificates of citizenship showing that they were Americans and entitled to kind of protection as Americans.
So that’s an example of citizenship kind of happening on a national level. At the same time, you have people talking about citizenship at the state level. So you have the idea of, you know, you can be a citizen of the state of Massachusetts, or the state of New York. And within those states, there were conversations about who could be a citizen, and what citizenship even was. And that discussion of state citizenship really got ramped up in the 1820s after the Missouri Crisis, which really put questions about race and state citizenship at center stage.
KW: The Missouri Crisis of 1819 and 1820 is best known as the moment when Congress debated whether the newest state, Missouri, would be admitted to the Union as a slave state…or not.
The House and Senate ultimately decided that slavery would be prohibited north of the latitude line marked by Missouri’s southern border–but allowed within Missouri’s state boundaries.
And because free African Americans lived in the shadow of slavery, this crisis had huge implications for them and their citizenship status.
KM: The second part of the Missouri crisis, which is actually not as well known, had everything to do with whether the state of Missouri now coming in as a slave state could instruct its legislature to ban migration of free Black people into the state.
So the question is, you know, can a state ban Black migration? Now, many states had already banned black migration in this period, um, starting with Virginia in the late 18th century. But at this moment that Missouri’s coming in, Congress has to approve its constitution. And so, Congress has a whole new debate about whether Missouri can ban Black migration, and this hinges on a part of the constitution that’s called the “privileges and immunities clause” that says that the citizens of the States are entitled to the privileges and immunities of citizens in all the States. That’s not a direct quote.
Basically what the advocates of African-Americans rights were arguing–and these are the people who opposed Missouri’s constitution–they were saying no state can ban the migration of citizens of other states, and we know that African-Americans are considered citizens in many states including, let’s say…Massachusetts.
And so how can Missouri ban their migration when they are actually citizens? And this gets really hashed out in Congress in very deep ways that go to questions of, “Well, what is a citizen after all?” “Are you a citizen If you don’t have the right to vote?” People disagree about that, right? Where some people say, “Well, look, women and children are citizens even if they don’t have the right to vote.” And other people say, “No, no, only people who have the right to vote are really citizens.”
And what ends up happening is Congress comes up with yet another compromise, which is: Missouri can keep that constitution and be admitted, but they can never enforce that provision that bans Black migration. And then what happens–what you see after 1821–is back in the states, there is a vibrant discussion of state citizenship and African-Americans’ relationship to it.
And so Massachusetts basically affirms that African-Americans are citizens of Massachusetts, as whites are. New York in a complicated way, affirms that Black people are citizens–even as it diminishes the voting rights of Black men–but still says yes, but African-Americans are citizens.
Ohio legislature basically doesn’t take a position on it, but refuses to affirm that African-Americans are citizens of Ohio. But so what you see after the Missouri compromise is a kind of growing. elaboration or discussion or attempt to define the meaning of citizenship, particularly in relationship to African-Americans, again at the state level.
What ends up happening, I mean, over time…these issues get hashed out at the state level, but also pop up into the national level into Congress from time to time as well when people are protesting, usually, the treatment of African-Americans in the States.
KW: So, you’ve just sort of explained the differences between citizenship at the national level and citizenship at the state level. Could you tell us about how this affected Black sailors who were conducting business across States?
KM: Sure. So a lot of this really comes out in very dramatic ways in Massachusetts. So Massachusetts has a huge port, Boston. Many of the sailors who worked out of that port were African-American. And as we’ve been talking about by the 1820s, the state of Massachusetts–the government–is very clear that they’re citizens of the state. So meanwhile, in the early 1820s, South Carolina begins a trend that…that kind of takes shape across the Southern States of passing laws that are directly targeting free Black sailors.
So Southern slaveholders and the Southern elite tend to be very concerned about Black sailors coming into their ports, not just from the North of the United States, but from the Caribbean, from Great Britain, people who had put in, in ports, in the Caribbean and particularly Haiti, which had had its own revolution against French authority at the end of the 18th century and early 19th century.
And so, South Carolina passes a law saying that free Black sailors coming into the port of Charleston have to spend their time in prison while they’re in port. And this means that the sheriff is going to come on board these ships and escort Black sailors to prison. And when the ship is ready to leave and, um, you know, go on to its next destination, the captain has to come to the jail, pick up the incarcerated prisoners, pay the fees associated with their incarceration, and then they can leave.
Well, this law in South Carolina is kind of the beginning of other Southern states passing these laws, which reflect their fears about again, um, Black sailors and just free Black people in general, coming in from outside and spreading what they saw as dangerous ideas.
In Massachusetts, people really galvanize against this. And it begins with testimonies from Black sailors themselves who have been incarcerated in these prisons and the growing abolitionist movement–you know, led by, by Black people and white people–really took offense at this and thought that this was, you know, completely unjust, not a way that their citizens should be treated while they’re abroad.
And so they begin to make these arguments about the citizenship rights of Black sailors. And in Massachusetts ultimately, in the 1830s, the legislature condemns what South Carolina has been doing. They begin to take their argument to the United States Congress because one of the things that’s interesting to consider at this time, you know, there was nothing that anyone in Massachusetts could do about how South Carolina and its people were treating Black sailors. There weren’t established channels for federal intervention in this kind of a situation.
And so this was the kind of thing that people from Massachusetts and also New York–which had a large Black sailing population, too–began to push in Congress and to say, ‘surely,” you know, “this can’t be happening. This is a violation of the constitutional rights of these sailors, of our authority as states to decide who are citizens of our states.” And so that’s how some of these arguments really get underway.
KW: So what implications will fights like this one over sailors have in guiding African-Americans’ fight for rights going forward, because they’re going to have to address the sort of unevenness, this recognition of citizenship in one state versus the denial of it in another.
KM: Right. So this is, you know, there are many different vectors for this struggle. And so one of them is at the state and local level in places like Ohio or Illinois, where there are so many restrictions on the rights of free African-Americans in the state itself that people in those places are often kind of turning their arguments toward the state legislature. They’re petitioning, they’re organizing. Black people are trying to find white allies who are willing to vote for these kinds of measures.
But in terms of a policy agenda, they are aiming at Congress. And they’re saying surely there’s something that Congress can do. African-Americans are citizens and they are guaranteed certain rights by the privileges and immunities clause in the Constitution. If we can’t get Congress to do something, let’s try to get a case into federal court and get, eventually, the Supreme court to rule on the question of whether these types of laws like you have in South Carolina are unconstitutional. So they’re fighting on many different fronts.
KW: So can you tell us a little bit about what this fight in Northern, and what we would today call Midwestern States looks like? Like, what are the sort of practical terms? What do people mean by equal rights?
KM: So one of the things that emerge is–particularly in the Midwest–are laws that explicitly discriminate based on race. Those are laws that said, for example, Black people have to register with county officials when they come into a jurisdiction; they have to get white people to post bonds for their good behavior–kind of promises that they wouldn’t become dependent on public alms or public resources. As state level public school systems emerged, states said they were for white children only.
African-American men were not permitted to vote. And another common policy was Black people could not testify in cases involving white people. And so in all of these cases, the laws themselves used racial language, whether they gave special privileges to white people or explicitly denied certain things to Black people. And so one of the most significant kinds of arguments that emerges is we cannot have racially discriminatory laws.
Like this is an unjust, unfair distinction among people and we just can’t have this. And so that kind of argument was an argument that was very hard to make in the early 19th century in places like Ohio and Indiana and Illinois. It was widely accepted that it was entirely within the power of the states to pass laws that discriminated based on race, just like they pass laws that discriminated against paupers or vagrants.
And so they really kind of piled these racist laws on top of existing traditions of not wanting poor people…transients in their communities. And many, many white folks thought this was entirely legitimate. So to launch a movement and a campaign to persuade people that that was not okay–that it is not okay to discriminate based on race–it might seem surprising to us now, but at the time this was tremendously innovative. It was important. And it was hard to get that message into politics to a point where you could actually get those laws repealed.
KW: Given this reality that you’ve explained to us, what–for free Blacks, in particular–what recourse, if any, do they have when they have a real understanding that their rights have been violated?
KM: Well, I mean, this is a really great question. You know, it depends where they are. In many places in the North, in the free States, African-Americans are a very small minority of the population. And that is a big difference between what you see in the antebellum North versus in the post-slavery South, where there are lots of counties and areas where African-Americans are actually a majority.
But in the North, you know, this is one of the reasons that this had to be a bi-racial movement, is because when African-Americans felt like they were being treated unfairly, they could organize among themselves, they could move into their own communities and try to kind of insulate themselves from white people by having kind of rural communities of African-Americans that had their own institutions. That sometimes happened, but they were still vulnerable. And I want to underscore that, you know, Black institutions, independent Black churches and kind of community organizations were really, really important to African-Americans and kind of sustaining those communities.
But if they wanted things to change on a kind of structural level, if they wanted to be able to go to court and get justice, if they wanted to be able to vote, they had to actually get white people on their side who would help them pursue these policies in government because there just weren’t enough African-Americans to kind of do it on their own.
And plus black men couldn’t vote. They just couldn’t, you know, go to the polls and elect a county representative. And so this was what they were up against.
KW: So could you tell us about the movement to repeal the laws in Ohio?
KM: Ohio led the way with these laws and kind of set the model to begin with. And I found as early as the 18 teens, people speaking out against the laws. There was an abolitionist newspaper called “The Philanthropist” in the late 18 teens coming out of southeastern Ohio. And they had a Black writer who went by the name David Blackmore, and he was an example of someone who took them on, on both the ideological level and the practical level. So he basically said, you know, these anti-Black laws are unjust. They go against the principles of the Declaration of Independence, principles of humanity, principles of justice. But it takes a long time to get a movement underway that’s going to repeal the laws, and this gets some momentum in the 1830s.
African-Americans begin to organize in ways that are at least more visible to us, as historians, in this period. So we see, in 1837, a meeting of African-Americans in Cleveland, which is in Northeastern Ohio, in an area of Ohio that was probably most favorable to abolitionists in this period. A man named John Melvin, who was a migrant from Virginia, is very visible in these proceedings as someone who’s pushing for African-Americans to organize and demand repeal of the laws.
And at that Cleveland meeting in the winter of 1837, they say, let’s try to organize statewide and petition the legislature to repeal these laws and also to give us our fair share of school funding. And they hire a guy named Molliston Madison Clark, who was connected with Oberlin, to tour the state and solicit people, to create petitions–petition the legislature–and then come together that summer for a meeting in Columbus where they’re really going to kind of meet and talk about what Black Ohioans should be doing to push for repeal of the black laws and school funding. And they’re doing this at the same time that white abolitionists in Ohio are also insisting on the inhumanity of the Black laws and pushing for repeal.
And they’re beginning to make little inroads into state legislatures. Little by little, in the 1840s, there’s all this party shifting, there’s third party organizing. Third parties like the Liberty Party and the Free Soil Party are able to kind of pick off–by exercising their power in really smart ways–they’re able to pick off people from both of the mainstream parties.
And you have kind of the culmination of it, this election of 1848–well-known because the Free Soil Parties, you know, did really poorly nationally, but in Ohio politics are dramatically changed by the election of a number of independent-minded legislators.
And what happens by the end of that legislative session–this is 1849–is the repeal of most of Ohio’s anti-Black laws and the inclusion of African-American children in the state’s public education system. And so this is a really triumphant moment, when years of organizing really has ended in making a significant difference in what’s going on in the state of Ohio.
So the part of the story here is if you want changes in policy, how do you get them, right? And one of the things you have to do is get people you agree with elected to office so they can change the rules, change the laws, right? Change enforcement or ensure enforcement of those laws. And so it takes a very long time for that to happen for the people I’m writing about in my book, right?
If you think that we’re going all the way back to the late 18th, early 19th century, it’s going to be a while before there’s a political coalition that is on board with defending the basic rights of African-Americans in the free states. And then it’s going to be kind of even longer before that political coalition gets into power.
KW: And that played itself out with the civil rights movement, too. None of that was predestined. None of it was guaranteed. There were reversals, but it was also another long fight.
KM: And you know, when you think about that, it means that like, you know, to really be true to that ideal, it’s like, it’s a lifelong project, right? ‘Cause you can never let up, but it’s also just a reminder of the responsibilities of democracy.
KW: Slavery’s slow and piecemeal abolition, the carnage of the Civil War, the progressive ideals of Reconstruction…none of these were enough to guarantee the total fulfillment of equal rights.
African Americans knew they wouldn’t be. They continued the fight and made significant gains throughout the late 1860s and 1870s. And though many of the activists wouldn’t live to see the effects of their efforts, their work defined the rights that all Americans enjoy today.
KW: So we’re going to come forward into the post-war period. Could you tell us about the Civil Rights Act of 1866, what it was intended to address and what its proponents hope to achieve?
KM: So, one of the things that people understood, in part, from the experience with free States that had racist laws–like Ohio, Illinois, Indiana–is that abolishing slavery did not necessarily lead to a racially equal system.
Those States had outlawed slavery, and yet for free Black people, they faced all of these discriminatory laws. And so people at the time were well aware that with a measure like the 13th Amendment–which basically says, you know, slavery and involuntary servitude are outlawed–that’s not going to necessarily put a limit on whether states can pass racist laws.
In the winter of 1866, Congress debated and then passes–and then re-passes over President Johnson’s veto–this first federal civil rights measure, which says that all citizens are entitled to the same rights as white citizens are. And this law is expansive. It is pointing not only to public state action, but also to economic rights.
It’s saying that those rights to property and contract, which might involve state officials–either granting or denying rights–but also might involve, like, everyday employers for whom Black people might be working or buying property from or selling property to…All of those people can not discriminate based on race. All citizens are entitled to the same rights as white citizens.
One of the interesting things about this law, right, is that it holds up white citizenship as the marker of what everyone wants. So the law in a way explicitly acknowledges the racism of the existing system and says everyone is entitled to what white people already think they’re entitled to, are already getting.
The other thing is that the law is very long, and it has a lot of different provisions about enforcement. And what it sets up in part is a set of federal officials–including federal marshals and lower kind of level of federal officials in the federal courts–who are going to be capable of enforcing this provision.
And it also says that if you feel that it allows people to move court cases from local jurisdiction into federal jurisdiction. So in other words, if people feel like they’re not getting fair treatment, or they’re being treated in a racist way in their local courts, they can move into federal jurisdiction.
And this is entirely unprecedented and it represents the recognition on the part of the people who framed the law that part of the problem was in local enforcement, that Black people were going to need to be able to call on some higher authority because it was highly unlikely that they were going to be able to get justice locally.
But this is a really, really groundbreaking measure, right? Because there had never been a federal backstop on anybody’s individual rights until the 13th Amendment. And in recognizing that everyone’s entitled to the rights white people are entitled to, it’s really shifting the conversation and really widening the idea of who is entitled to what in this country.
KW: So we know that shortly thereafter Isaac Barnes, a Black man, takes his case to court. He sues his employer for wages owed. Could you tell us his story and the significance of the 1866 Civil Rights Act in his case?
KM: So Isaac Barnes is a Black man in Indiana whose employer had refused to pay him wages owed. And when Barnes had said, “Well,” you know, “I did this work, you need to pay me,” the employer said, “Well, I don’t because you’re in the state illegally; you came into the state against the Indiana state laws barring Black migration. So you’re not allowed to work here. And so”, like, “you have no claim.”
And Barnes, the day…I believe it was the day after the Civil Rights Act went into effect, went to court and said, “Oh yeah, well, a law that bars Black people from migrating into the state is no longer a valid law because it denies black people the same rights that white people are entitled to.”
And so the Civil Rights Act of 1866 gives him a new tool and he–because he filed suit so quickly–he’s the person who pushes an Indiana court to take a position on the Civil Rights Act. And that court says, “You know, you’re right. At this point this law–this Indiana state law–is unenforceable. And so yes, Isaac Barnes is due his wages.”
And we don’t know very much more about Isaac Barnes’ case. I tried to find out more and was not able to…so you don’t, we don’t know, you know, his decision-making process or how and why he decided to go to court that day. But the timing, you know, suggests that he believed he had a new way to make his claim. And that’s so important when you think about it, because again–getting back to this idea of tools–like what is in people’s toolboxes to be able to kind of make claims to rights or to what they’re justly owed?
Before these federal measures, African-Americans had much less to be able to invoke, to make claims. Now, you know, with varying degrees of effectiveness–it didn’t always work the way it worked for Isaac Barnes–but they could call forth what the United States government has just done to their side of this argument. And they could win.
Congress goes on to pass the 14th Amendment, partly in section one–which says states can’t deny people equal protection of the law, or due process of law–to kind of constitutionalize the Civil Rights Act, because a lot of people believed Congress didn’t have the power to pass that Act unless it passed another Constitutional Amendment.
KW: With this expansion of freedom, citizenship and voting rights at the time, what did African-Americans do–or try to do–with their lives, with their freedom? How did they try to make it real? You know…suddenly they’ve got this new opportunity, these new rights, this new recognition. What do they do with it?
KM: You know, Black people are just trying to make lives in freedom. I mean, they’re just trying to find a place to live, where they can have families and have communities and make a livelihood and kind of get…get on with their lives, right? And not feel oppressed and, you know, beleaguered by their white neighbors.
And, you know, there’s just a lot of similarities across time about why people seek out new places to live. And it’s, you know, for economic opportunities, it’s for peace of mind, it’s so that you can have the things that you want in life, which often have to do with family relationships, with a sense of community. And I think that’s what people ultimately wanted.
But then those people who were politically inclined, you know, those people who also wanted to, like, go to the wall to kind of make change, to go beyond just like, “I want to secure a decent life for my family and my community,” they were the ones who kind of pressed for more…kind of, for better policies, right? And that’s not everyone’s cup of tea, so not everyone is super political, but for the people who were very political, they wanted to, you know, kind of make the situation better, end discriminatory policies and also get political power, right?
You have Black men running for office–serving on school boards, serving in city councils, eventually serving, you know, in the United States Congress–coming from the North, increasingly, right? Even as those opportunities are shut down in the places where African-Americans are actually in the majorities in the South.
KW: So was their vision that it could be a better country? Is that what actually happened? Were more people able to enjoy the rights and privileges that were pushed for, or that were developed at this time? So, not just African-Americans…What about Native Americans, immigrants, refugees, et cetera?
KM: I mean, there are a lot of ways to answer this question. I mean, for example, a commitment to citizenship for African-Americans actually sort of develops in conjunction with growing anti-Chinese sentiment and the growing idea, as historian Beth Lou Williams has shown, that there is a kind of quintessential alien figure in our society.
And in the 19th century–late 19th century–that figure was the Chinese immigrant, who could never be naturalized, who could never be a citizen. Although, by the 14th Amendment, the children of Chinese immigrants were in fact considered citizens of the United States.
For Native Americans questions of citizenship were really complicated, because although some of the provisions of birthright citizenship kind of brought Native Americans into the realm of citizenship, many native people did not want U.S. citizenship. They wanted sovereignty in their own nations, and they didn’t want to be kind of sucked into that orbit of United States citizenship.
But I would say like in the long, long time horizon that the 14th Amendment, for example, has actually turned out to be critically important for securing not only the principle of anti-racial discrimination, but eventually–not until like the 1970s–a principle of, opposition to sex discrimination, and that parts of the 14th Amendment have become the foundation of jurisprudence around the rights of LGBTQ people, around the rights to sexual expression or expression of gender identity.
And so in some ways, these measures–particularly the 13th and 14th Amendment–that were put in place to grapple with questions of slavery and the problem of African-Americans and racial equality in the post-slavery situation actually have opened up the door to claims of equality for just about every kind of group you can imagine in the United States and, and that’s, you know, really important, and it’s really interesting, right, that those measures in the Constitution came out of the need to grapple with slavery, but have actually kind of redounded to just about everyone’s benefit.
KW: So why wasn’t that enough? You get all of the rights and the protections. Why wasn’t that enough?
KM: Well, I mean…so I think one of the things that’s very clear and very important is a promise of rights are meaningless without enforcement. So, you know, just like the promise of the Declaration of Independence–that all men are created equal–I mean, nobody’s enforcing that. And so like, okay, fine…It’s a nice thing to draw on when you’re making a claim, but it’s not really protecting anyone.
And the same can be said for the implementation of these civil rights measures during Reconstruction. I don’t think that the people in the federal government who enacted these were doing it in a cynical or hypocritical way. I think they really believed in what they were doing. But there were a lot of other factors that meant that enforcement was lacking, and these factors included state incapacity. There was not a big federal apparatus to enforce these measures, even if there was a will to enforce them.
KW: And even with that, that still doesn’t end the issue because what we’re going to see is that the fight is going to continue as African-Americans continue to fight for a series of rights that will sort of inform what will become the Civil Rights Act of 1875–called the Supplemental Civil Rights Bill. Can you tell us what it entailed, and why African Americans and their allies fought for it?
KM: The Civil Rights Act of 1866 and the 14th Amendment were on the books, and yet the challenge was, how do you make them real in the lives of people? And that, you know, remains an ongoing question. And the other thing is like, well, what do they actually cover? And so traditionally in a kind of narrow legal definition, when people talked about civil rights they were often talking about, again, things like the right to enter into contracts, to sue and be sued, to personal liberty, moving from place to place, to own property and defend that property.
The question of whether places like streetcars, railroads, theaters, schools, churches, cemeteries…Was access to those, regardless of race, part of your civil rights or not, right? That was a very unresolved question. Some people believed they wanted to keep the definition narrow. And others said, well, look, I mean, a ticket on a railroad is essentially a contract. And so if there’s no discrimination…racial discrimination in contracts, then Black people should have the same rights as white people to buy a ticket on a first-class car, for example.
But not everyone agreed that that was the correct interpretation of what they had just done. So what a lot of Black activists pushed for was an additional federal civil rights measure that would create a federal ban on discrimination in what are called public accommodations–this broad group of things like streetcars, railroads, theaters, hotels– and eventually Congress did pass what’s called, as you mentioned, the Civil Rights Act of 1875 or the Supplemental Civil Rights Act, which placed a federal ban on discrimination in those areas, excluding schools and cemeteries and churches.
But as you know, in 1883 the Supreme Court basically struck down that law, declaring it unconstitutional, saying that in passing that law Congress had exceeded its power under the 13th and 14th Amendment. So that federal ban was very short-lived.
KW: So how do African-Americans react to the Supreme Court’s ruling in the civil rights cases in 1883?
KM: There is a huge groundswell of protest against this ruling. They had…many Black activists had fought so hard and pushed so hard, saying that it was the next obvious step that Congress needed to take to secure racial equality, that the Supreme Court kind of saying, you know, this is beyond the power of Congress was just a huge disappointment.
And so there are protest meetings throughout the country, people condemning it. And then what they do, which–you know, we sort of see this dynamic over and over again in American history–is they turned to the States, right? And they say, well, you know, if the federal ban is now off limits, we can’t have that anymore, let’s get the states to pass civil rights laws on public accommodations. You know, let’s lobby our state legislatures to get this done at the state level…state level bars on discrimination in these areas.
And almost all the Northern states and many in the far west actually do pass state level bans on racial discrimination in public accommodations either before or often after the civil rights cases decision of 1883, which struck down the federal law. And so what you see is, you know, on the one hand, it’s really a tribute to African-Americans’ perseverance on this issue. And it’s an interesting kind of comment on federalism in the United States that if you can’t get it done in one area, or you won’t…the door’s closed in one area, you can try a different level of jurisdiction and you have white allies who are willing to make it happen.
On the other hand, you know, it is also a sign of an American problem, which is often a lack of commitment at the federal level to put the power and the resources of the federal government behind enforcement of racial equality in a way that protects people against what their state and local governments might be likely to do.
Not to say that getting the federal government involved as the be all…you know, is going to fix everything. But it’s a really important first start. And I think that’s one of the things that the history of Reconstruction tells us and that the demise of Reconstruction also tells us–that when you withdraw a federal commitment to these kinds of things, you’re much worse off than when you have that federal commitment.
Eventually, Republicans became worried that they would start losing elections back home in the North, if they continued to put the military on the ground to enforce the rights of African-Americans in the South. And it will end up taking, you know, a very long time–and another huge social movement–to demand enforcement of those provisions. And so, you know, this is…you know, kind of a never-ending struggle.
KW: And to that point, historically–even up to today–we’ve seen that not even citizenship and detailed civil rights spelled out completely protect African-Americans’ rights, or their rights to have their rights recognized. Do you think that there’s another framework to make this happen if rights–or civil rights and political rights–aren’t the way to do it?
KM: I do think that there are real limitations in terms of talking about things as rights. And it just is clear over and over again that just because you say something is your right doesn’t mean you get to have it. And that’s true for Black people, but it’s also true for a lot of other people, too, including people who would argue that, you know, they have a right to carry a gun wherever they want to right?
I mean, slave owners claimed, you know, absolute property rights in slaves. And so, first of all, there’s not anything necessarily liberatory or egalitarian about claiming a right. And so, you know, I think that, to me, it’s like we actually just need to be looking at what are the policies that our governments at every level are pursuing and not just, what do they say they’re doing, but what do they actually do? And then I want people to feel empowered, to get involved at every level and understand that the most local kinds of politics are often the ones that matter the most in people’s everyday lives.
And that when we focus on what is actually going on in our communities and who has the power to make a difference in our lives–who has public authority–and then address those people and figure out, you know, who…what level am I talking to here? Is this about my county? Is this about my municipality? Is this about my state legislature?
Figure it out and go to those people and ask for more and organize to ask for more. And so, you know, I think it’s in the realm of kind of public policy and politics that we can make the most difference.
KW: Are there any lessons or is there any insight we can learn today from activists of the first civil rights movement?
KM: One thing that strikes me is that–and they might not have been able to see this as clearly as we could see it now–but this was a long fight. And that when things don’t work out the way you want them to, it doesn’t mean it’s time to give up. It might mean it’s time to try a different strategy. It might mean it’s time to try to find different allies.
But this is a kind of a long-haul game. And so we have to kind of think big and not necessarily feel, you know–I mean, it’s easy enough to say that and much harder to live it–but not necessarily feel that some kinds of losses and defeats are really kind of the end of the story. And the other thing I just want to mention is so often the wins…the wins that these folks got were by a, by a hair.
Or they just benefited from political coincidence, right? So either they might have a majority in the state legislature of one person, but they still get it, right? And so a win is a win. And the other thing is, you know, with something like what happened in Ohio in 1849, where this movement really benefited from a kind of party realignment that was happening, that wasn’t necessarily connected to the movement per se, but yet they stepped in and were ready with like, “Okay, if,” you know, “there’s going to be all this political upheaval in Ohio, here’s what we want if we’re going to be on your side,” right?
So taking advantage of a political moment that you might or might not have brought about and being able to kind of insert your agenda into that also seems like an important lesson for us now.
KW: And I agree because you see that with this movement, you see it with slavery, the sort of larger abolition movement. You see that with the civil rights movement, and it may make people uncomfortable today, but movements–especially revolutionary ones often take decades–if not centuries, you know, in order to achieve the results. So thank you so much for giving us your time and sharing your insight.
KM: Thanks so much for having me. It’s been such a pleasure.
KW: Thank you.
About the Guest
Kate Masur is an associate professor of History at Northwestern University, and has a courtesy appointment in the Department of African American Studies. She is the author, most recently, of Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction (W. W. Norton, 2021).
Her previous work has focused primarily on the Civil War and Reconstruction. Her first book was An Example for All the Land: Emancipation and the Struggle over Equality in Washington, D.C. (UNC Press, 2010). She later collaborated with Gregory P. Downs to edit a collection of new scholarship on the post-Civil War era, The World the Civil War Made (UNC Press, 2015), and she and Downs co-authored the US National Park Service’s National Historic Landmark Theme Study: The Era of Reconstruction, 1861-1900. She also coordinated republication of the 1942 book, They Knew Lincoln, by John E. Washington (Oxford UP, 2018), the first book-length treatment of Lincoln’s relationship with African Americans, and she wrote an extensive introduction that placed the book and its author in historical context.
Masur has received numerous grants and fellowships, including from the National Endowment for the Humanities and the Hutchins Center for African and African American Research at Harvard. She is currently working on a digital exhibit on African American life and activism in antebellum Illinois, in coordination with the Colored Conventions Project at Penn State University, and on a graphic history of Reconstruction in Washington, D.C. Her writing has appeared in a variety of popular venues, and she regularly consults with museums and other institutions about historical exhibits and pedagogy.