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Q&A: Civil Rights During Reconstruction

Historians describe the debate over extending civil rights to former slaves that divided the country after the Civil War. The same issues would re-emerge decades later, in the civil rights movement of the 1950s and 1960s.

How did nineteenth-century Americans view racial equality?

Eric Foner: In the language of the nineteenth century, there are various degrees of equality. There's sort of natural equality: All men are created equal, and all are entitled to life, liberty, and the pursuit of happiness. There's political equality, which is the right to vote. There's civil equality, which is equality before the law. And then there's this kind of realm, this vague realm called social equality. Now, to some, this is very frightening. Social equality is thrown up as an argument against Reconstruction. It means intermarriage, interracial sexual relations -- this is [seen as] a horrible thing. Of course no law is dealing with that, and the Republican Party keeps insisting, "Reconstruction [has] nothing to do with social equality in terms of personal intimate relationships."

Social equality also means access to public facilities. And that's where the Civil Rights Law of 1875 is going. And it's trying to legislate some kind of social equality, but that produces tremendous reaction and tremendous opposition in the South, where they say, "The government is trying to amalgamate the races," to use the phrase of the nineteenth century, and that will again encourage interracial sexuality, the great bugbear of this kind of discourse.

Eventually, the Supreme Court declares the Civil Rights Law of 1875 unconstitutional in the civil rights cases of 1883, because the Fourteenth Amendment had outlawed discrimination by state governments. The Civil Rights Law is geared against discrimination by private businesses. And the court will rule that Congress has no power, under the Fourteenth Amendment, to outlaw private actions that may be discriminatory. Again, that's social equality, which cannot be legislated by Congress.

Eric Foner

What did Northerners think about black civil rights during Reconstruction?

David Blight: There wasn't necessarily a clear consensus about what Reconstruction policy ought to be, and there certainly wasn't yet a consensus about the extent of liberty and civil rights for the freedmen. But there was a fierce need or desire among white Northerners at the end of the Civil War to preserve what they had suffered and died for. And it has a great deal to do with why, for at least a short period of time, the radical Republican vision of Reconstruction did manage enough support to sustain it, at least through the restoration of the Southern states between 1868 and 1870.

Of course, like in all eras of American political history, Americans are also during the early Reconstruction years responding to events. For example, in 1866, only a year after the war had ended, some terrible riots occurred in the South, namely in Memphis and New Orleans, which were essentially massacres conducted against black communities... where it was clear to anyone who looked that if some kind of police action, if some kind of order, if some kind of occupation wasn't established at least for a short period of time, white Southerners were going to take back control of their society. And somehow that cause for which Northerners had died would have been in vain.

There were a lot of white Northerners in 1866 and 1867, who were not at all certain they wanted to see black people as citizens and living with equality under the law. But they were very certain that they didn't want the leadership of the Confederacy to be once again leading the South. And they did want slavery ended, because they had now lived through a generation of political turmoil caused by slavery. And of course the black codes, which were established during the summer of 1865 and into the fall of 1866 -- allowed to fruition by Andrew Johnson's administration -- the black codes were laws passed... to control and restrict and constrain the lives of the freed people, essentially rendering them basically bondsmen again under law. These were vagrancy laws; these were laws against ex-slaves owning any property, laws against educating black people, laws against their mobility and so forth. The black codes themselves offended many white Northerners, because it seemed like that the very cause for which they had just fought the war was somehow now going up in smoke.

David Blight

What were the two major political parties' positions on black civil rights at the time?

Ed Ayers: One of the confusing things as we attempt to understand Reconstruction, is that in many ways the roles, the identities of the two major parties were reversed. Today we think of the Democratic Party as the party of strong national programs and of strong African American support. That idea came to be during the 1930s... and the New Deal, Franklin Roosevelt... Republicans, that we today think of as supporting small government, back in the era of Reconstruction were the party that was pioneering in the creation of a strong national state to protect the rights of African Americans in the South.

Ed Ayers

What did the nineteenth-century civil rights legislation try to accomplish?

Eric Foner: The Civil Rights Act of 1875 is the last major piece of Reconstruction legislation. It outlaws racial discrimination in public accommodations -- hotels, transportation, opera houses, things like that. It pushes the idea of equality about as far as you can go in nineteenth-century America, into these private relationships of businesses and access to all these often private places. Charles Sumner, the senator from Massachusetts, had been pushing for this for a long time. He died in 1874. In 1874, the Democrats regained control of Congress. There's one more session in early 1875, with a Republican majority until the new Congress meets. And partly as a tribute to Sumner, partly because this is the last time they're ever going to be able to do it, they do pass the Civil Rights Act of 1875.

Black Congressmen like Congressman John R. Lynch play an important role in the debate, in really insisting on the importance of civil rights, in terms of the needs and desires of the black constituency. They tell, in their speeches, how they themselves are stigmatized. Even coming to Washington as a member of the Congress, they sometimes have to sit in separate cars. They get off at a station and they can't get a meal. They can't find a hotel in town to stay at. So it's really these humiliations, these constant humiliations that black people face. And the Civil Rights of 1875 is an attempt to address them.

Eric Foner

How does the Reconstruction-era civil rights debate connect to the 20th century civil rights movement?

Ted Tunnell: The second Reconstruction is what historians call the civil rights movement of the 1950s and 1960s, the time in which finally black people are truly emancipated. They're only half emancipated after the Civil War. Final emancipation, final meaning to the promise of the first Reconstruction, doesn't come until the 1950s and the 1960s, in the second Reconstruction. But without the first one, you don't have the second.

...In some sense, the first Reconstruction is ahead of its time. The public accommodations clauses, the civil rights laws, this notion of a bi-racial citizenship, that black people are going to be full partners in the story of American life. The promise is there in the first Reconstruction, but it is aborted. And it doesn't fully come to fruition until the second Reconstruction.

Ted Tunnell

Did nineteenth-century civil rights legislation affect 1960s legislation?

Eric Foner: Most of the Reconstruction legislation remains on the books. Some of it doesn't. The 1875 law was declared unconstitutional. But the Civil Rights Law of 1866, and of course the Fourteenth and Fifteenth Amendments, remain in the Constitution. They're "sleeping giants," somebody calls them. But it takes a century for them to be reawakened after the overthrow of Reconstruction.

One of the lessons of this history is that simply having rights in the law is not sufficient. The law can be violated. The law can be abrogated. The law can be ignored, as it was for many, many decades in this country. So freedom is a constant struggle. It's not just achieving something in law and then going home and assuming that everything will be okay.

Most of Reconstruction legislation is far ahead of its time. It took another century for this country to try to live up to the ideals that were implemented temporarily in Reconstruction. Some of the Reconstruction laws were more powerful than laws passed later. The Civil Rights Law of 1866 was more powerful than many of the civil rights laws of the civil rights era of the 1960s. The 1875 Civil Rights Law banning discrimination in public accommodation is very similar to the 1964 law.

The Supreme Court in the 1960s, when it upheld the Civil Rights Law of 1964, did not do it under the Fourteenth Amendment. The Fourteenth Amendment has still not been interpreted to allow Congress to bar private discrimination. What the court did in upholding the Civil Rights Law of 1964 was to say it's the commerce clause. The Constitution gives Congress the power to regulate commerce, and this kind of discrimination interferes with commerce. If a black person can't travel freely, a businessman can't get a room in a hotel, that is interfering with commerce, and Congress has a right to prohibit that. So in a way, the law of 1875 was more far-reaching in some ways than what we were able to pass in the 1960s.

Eric Foner
 
page created on 12.19.03
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