Student Blogger - #13Amend Live Blog: Emancipation and Civic Status

William Wiecek, ""Emancipation and Civic Status: The American Experience, 1865-1915": Prof. Wiecek is involved in a collaborative project investigating the structural racism of the Supreme Court. This paper is closely related to that project. Before the Civil War the laws of the free states and slave slates differed as to the status of a free black person. In the North, the civic status of free blacks included the rights of habeas corpus, jury trials and a unitary criminal process (the same for whites and blacks). It is true that there was discrimination, but much is lost if we ignore the rights of blacks that were recognize. The Northern view was that slavery was odious and therefore could only exist as a creation of positive law. If an individual was able to escape the jurisdiction of positive law, he would also be free of the bonds of slavery. The Southern view was very different, almost a mirror image; blacks had no natural rights. The Dred Scott case, supported this view in holding that black had "no rights and privileges except those given by positive law." The Civil War and Reconstruction marked the victory of the free state view. The Black Codes in the south give blacks some contract rights, the right to marry, but there was still race control and coercive labor. Reconstruction brought the 13^th Amendment, endowing individuals with rights. This was followed by the Civil Rights Act of 1866, which reaffirmed four elements of civic status for blacks: the right to contract, access to the courts as party and witness, the right of property and a general right of equality. The 14^th Amendment guaranteed citizenship, privileges and immunities, due process and equal protection. The promise of these legal successes, however, was stunted during the Era of "Servitude", from 1880-1915. During this era, blacks were systematically stripped of rights. They were victims of de jure segregation, their economic opportunities were severely limited and they were often subjected to acts of violence and terrorism. Wiecek argues that the Supreme Court was complicit, because none of this would have been possible without a series of cases, including Plessy v. Ferguson, which severely limited the application of the 14^th Amendment. How did this happen? The doctrine spoke of positivism and state sovereignty, but Wiecek instead claims that the law was animated by a metadoctrine of racism.