6.1: Race

Beginning with the arrival of the first slave ship in Virginia in 1619, approximately ten million people of African descent were brought to or born in America as slaves, forced to labor under excruciating circumstances, brutally mistreated, and denied virtually all political and legal rights. Slavery divided the country at the time of the Constitutional Convention: several northern states had enacted policies to abolish or gradually phase out slavery, while agriculturally dependent southern states practiced it with alacrity. Roughly half of the delegates who gathered in Philadelphia in 1787 to draft a new constitution — including some of those who spoke most vociferously against slavery during the convention — either were or had been slaveowners.

The Constitution failed to settle the issue of slavery, and for several decades the new nation maintained an uneasy truce between “free” states and “slave” states. During the first half of the 19^th century, new states were admitted to the Union in pairs — one free, one slave — to preserve a balance of power between the two factions, and dual federalism mostly left slavery up to the states to decide for themselves. Neither trend proved sustainable: with California’s admission in 1850, free states began to outnumber slave states, at the same time that the Fugitive Slave Act and the Supreme Court’s decision in Dred Scott v. Sandford were encroaching on free states’ ability to exclude the practice of slavery from their territory.

It took four bloody years of fighting and a victory for the Union (the North) over the Confederacy (the South) in the Civil War to generate enough political momentum to end slavery. In the aftermath, Congress passed and the states ratified three constitutional amendments: the Thirteenth (abolishing slavery and involuntary servitude, except as punishment for crimes), the Fourteenth (establishing equal protection under the law for all citizens), and the Fifteenth (preventing the denial of suffrage — the right to vote — on the basis of race).

Although these three amendments made whites and blacks equal according to the letter of the law, that equality was not immediately realized. Southern states, which had supported slavery and joined the Confederacy during the Civil War, were reluctant to upend the racial hierarchy that privileged whites at the expense of blacks in the South. However, they could no longer pass laws which openly discriminated on the basis of race, because such blatantly unconstitutional laws would be struck down by the Supreme Court.

To get around these new restrictions, Southern states passed various Jim Crow laws to preserve the race-based social order of whites over blacks. For example, instead of directly barring blacks from voting, some states imposed a literacy test, requiring citizens to prove they could read before they were allowed to vote. (See Figure 6.1 below for sample questions from one such test.) To prevent literacy tests from disenfranchising illiterate whites, states also included a grandfather clause allowing citizens to skip the test if their ancestors had the right to vote prior to a certain date. This date varied from state to state, but it was always before, during, or just after the Civil War, when whites could vote but blacks could not. Thus, the combination of literacy tests and grandfather clauses was therefore able to prevent many blacks from voting, even though neither policy directly referenced race.

Figure 6.1: Sample questions from a 1963 Louisiana literacy test, with typos as they appeared in the original document (Source: Civil Rights Movement Archive)

Literacy tests and grandfather clauses illustrate an important truth: the effect of a law depends not just on what it says but also the context in which it is enforced. To someone unfamiliar with American history, these laws would seem completely unrelated to race — yet, combined with the racial inequality in the United States at the time, they proved to be powerful tools of discrimination and suppression. The “letter of the law” rarely tells the whole story of what impacts a law will have once enacted.

In addition to denying blacks political power by suppressing their right to vote, Jim Crow laws were used to enforce segregation, dividing blacks and whites into separate schools, hospitals, restrooms, and other facilities. The 1896 Supreme Court case Plessy v. Ferguson (which concerned a mixed-race shoemaker who refused to leave a whites-only railroad car) upheld the constitutionality of segregation provided the facilities were “separate but equal.” In practice, the separate but equal doctrine was a farce: public accommodations for blacks were often underfunded and poorly maintained compared to those for whites. Half a century later, the Supreme Court overturned Plessy in its 1954 decision Brown v. Board of Education of Topeka. Brown declared racial segregation unconstitutional in schools, and 1964’s Heart of Atlanta Motel, Inc. v. United States extended this logic to ban racial segregation in all public accommodations.

Social movements played a vital role in the struggle for racial equality. Boycotts, acts of civil disobedience, and nonviolent demonstrations organized by Martin Luther King, Jr. and other civil rights leaders brought national attention to discriminatory state and local laws and put pressure on Congress to step in. This pressure ultimately resulted in three major pieces of legislation — the 1964 Civil Rights Act, the 1965 Voting Rights Act, and the 1968 Fair Housing Act — which together formed a strong foundation for national government involvement in the protection of rights for citizens of all races.