The Thirteenth Amendment of the United States Constitution brought a decisive end to slavery in the United States in 1865. The amendment enshrines important principles of justice—self-ownership, individual liberty, and equality before the law. The amendment declares that, “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.” It also empowers Congress “to enforce this article by appropriate legislation.” While that declaration should have been the end of a painful chapter of history and the heralding of a new dawn, the Radical Republicans soon began promoting the idea that the South had not abandoned slavery. They claimed that abolition only marked the beginning of a new form of slavery in the South, a claim that continues to hover like a dark cloud over contemporary politics.
In his book, Reconstruction, Political and Economic 1865-1877, William A. Dunning explains that soon after the enactment of the Thirteenth Amendment “the radicals not only asserted, but were able to present plausible proofs of their assertion, that the southern legislatures, even while ratifying the Thirteenth Amendment, were enacting laws which preserved the substance though avoiding the name of slavery.” This was alleged to have been done through the Black Codes of the Reconstruction Era, and later through the Jim Crow laws. Yet closer analysis shows that the attempt by radicals to link these laws to slavery was a political ploy designed to garner support for their vision of “reconstruction” and for further centralization of federal power. There are two main reasons why the radicals’ allegations should be disregarded.
First, support for abolition was widespread in the South. Donald W. Livingstone observes that, “There had long been an anti-slavery tradition in the South, especially in Virginia. By 1830, there were far more anti-slavery societies in the South than in the North.” Robert E. Lee and other Confederate leaders considered the institution of slavery to be morally and politically wrong. Although evidence can of course be found of Southerners who expressed support for slavery, such evidence is also found amongst Northern politicians including Abraham Lincoln and many of his Generals such as William T. Sherman. Double standards now apply, in which examples of support for slavery in the North are dismissed as not being reflective of the general view of the North, while examples of support for slavery in the South are treated as conclusive evidence of the general Southern position. Similarly, statements from Southerners rejecting slavery are ignored as insignificant, while statements from Northerners rejecting slavery are emphasized. We are led to believe that politicians in the North “evolved” in their thinking after 1865, while politicians in the South never “evolved.” Such double standards are the hallmark of political propaganda.
The second reason why the radicals’ allegations should be seen as merely a political ploy is that the Thirteenth Amendment has generally been accorded an expansive interpretation by the Supreme Court and would not be possible to bypass even if the South had been so minded. Tobias Barrington Wolff sees the early case law on this amendment as “conservative,” but he observes that, “Despite its early embrace of a conservative interpretive approach…the Supreme Court has since recognized the continuing need to apply the Amendment in new ways to the changing shape of American industry.” Wolff also cites the observation of the Supreme Court in Brown v. Board of Education that “we cannot turn the clock back to 1868 when the Amendment was adopted,” but must instead interpret legislation in light of contemporary norms. Given the Court’s increasingly progressivist stance, the notion that state legislatures could bypass abolition is fanciful.
The Black Codes
To better understand the political situation, Dunning scrutinizes the assertions by “radicals in the North” that the “Black Codes” in the South were designed to thwart abolition and restore slavery in all but name. Dunning details the restrictions to which blacks were subjected, notably by giving “white magistrates wide discretion in stamping blacks as vagrants.” This was seized upon by radicals as evidence that there was no substantive difference between slavery and freedom in the South. For example, Eric Foner highlights “the uproar caused in the North by these laws.” In evaluating the Northern reaction, Dunning cites the example of the Chicago Tribune thundering “that the men of the North will convert the state of Mississippi into a frog-pond before they will allow any such laws to disgrace one foot of soil over which the flag of freedom waves.” But it is clear that in a time when racial discrimination was endemic in both North and South, any fear that these laws intended to restore slavery was confected. Dunning explains:
In Mississippi the freedmen could not own land, nor could they even rent it save in incorporated towns… To a distrustful northern mind such legislation could very easily take the form of a systematic attempt to relegate the freedmen to a subjection only less complete than that from which the war had set them free.
The notion was publicized by the Chicago Tribune that the South was attempting to bypass abolition. Yet Illinois also had “black codes” of its own until 1865, which were designed to prohibit free blacks from moving to Illinois:
Black Laws restricted African-American emigration into Illinois and prohibited African-Americans from serving on juries or in the militia. In 1848, Illinois voters approved a new state Constitution that required the state legislature to prohibit African-Americans from moving to Illinois…the legislature passed the 1853 Black Law and it went into effect on February 12 of that year.
Therefore, although Foner quotes a Radical Republican remarking that the purpose of the Southern Black Codes was “getting things back as near to slavery as possible,” it cannot be concluded that these Codes were a peculiarity of the South. The law in Illinois could also be said, in the same sense, to be “as near to slavery as possible.” Until its repeal in 1865, it stated that:
If a free African-American entered Illinois, he or she had to leave within 10 days or face a misdemeanor charge with heavy fines. Subsequent violations led to increased fines. If the fine could not be paid, the law authorized the county sheriff to sell the free African-American’s labor to the lowest bidder, essentially turning the violator into a slave.
This example illustrates that the Black Codes were typical of the racial attitudes of the time—no more so in the South than in Illinois or other Northern states such as Indiana that also had laws banning blacks from entering or settling in their state. Any attempt to depict the Black Codes as distinctively Southern is, therefore, disingenuous. Moreover, as Dunning points out, the outrage expressed by the Chicago Tribune overlooked important realities of the post-war conditions in the South that those who actually lived in the South did not have the luxury of ignoring. Dunning puts the post-war legislation into that wider context, showing that this legislation was not simply a ruse to thwart abolition. He explains:
Yet, as a matter of fact, this legislation, far from embodying any spirit of defiance towards the North or any purpose to evade the conditions which the victors had imposed, was in the main a conscientious and straightforward attempt to bring some sort of order out of the social and economic chaos which a full acceptance of the results of the war and emancipation involved.
The legislative goal of Southern states was, therefore, not an attempt to wrest victory from the hands of the triumphant North, as alleged by Radical Republican propaganda. The aim was rather to respond to specific political, social, and economic challenges. For example, the vagrancy laws that evoked such outrage sought to deal with “problems of destitution, idleness, and vice” among emancipated slaves. These laws were depicted by radicals as nothing more than blatant racial prejudice. Foner, for example, remarks that “planters complained of widespread theft by blacks.” He questions whether the planters’ complaints about theft were valid. He argues that “one man’s theft may be another’s ‘right,’ especially where the former’s claim to his property is open to question.” The implication is that given the injustice of slavery, it could legitimately be questioned whether a freed slave stealing property from a plantation is really “theft” or at least that it would be churlish for any white person to complain about theft by a black person in the aftermath of emancipation. This reasoning is similar to that expressed by Black Lives Matter in 2020:
The Chicago Black Lives Matter organizer who justified looting as “reparation” has doubled down — insisting this week that even calling someone a criminal is “based on racism.”
Ariel Atkins told WBEZ that her group “100 percent” supports the violent looters who trashed chunks of the Windy City on Monday, again repeating her claim that it is “reparations.”
“The whole idea of criminality is based on racism anyway,” she told the NPR station.
“Because criminality is punishing people for things that they have needed to do to survive or just the way that society has affected them with white supremacist BS,” she said.
Foner quotes a “black preacher” who counseled his congregation that “it was no harm to steal from white people, that his hearers would only be getting back what belonged to them.” The implication is that disputes over title to property were inappropriately treated as cases of “theft” by planters. Foner also remarks that planters resented blacks hunting on their property because “it also often involved trespass, thus flouting whites’ property rights.” That analysis implies that property rights are some sort of affectation of white people. Foner also reports that Georgia “forbade the taking of timber, berries, fruit, or anything ‘of any value whatever’ from private property”—in other words Georgia forbade theft. But why should it be remarkable for theft to be treated as a serious crime in the postwar South? It is not credible to argue that the only reason Southerners were against theft of their property was because of “racism” or because the thief happened to be black.
It could be argued that imposition of the death penalty for stealing a horse or a mule is disproportionate, and many do regard the death penalty as cruel and unusual punishment for any theft, no matter the value of the stolen property. It is also true that many people are opposed to the death penalty regardless of the crime. Murray Rothbard insisted on proportionality in punishment—it is a basic principle of libertarian justice that the punishment must fit the crime. However, by characterizing the prosecution of theft in the South as a racial problem that concerned “whites’ property rights,” all these important questions of crime and punishment are sidelined. Revisionists who reduce economic upheaval and disruption to mere racial resentment and victimology, therefore, impede the accurate understanding of these problems. Tom DiLorenzo is, therefore, justified in criticizing the revisionist reinterpretation of the economic and political challenges facing the South:
Reconstruction revisionists, the most prominent of whom is Marxist historian Eric Foner, even while admittedly agreeing with many (perhaps most) of the facts that Dunning and his disciples presented, claim to have “overturned” the Dunning School’s interpretation of Reconstruction. They admit that government became greatly centralized (which they applaud), that there was massive corruption, that Southern property owners were effectively looted for twelve more years (which they also applaud)…
The reconstruction revisionists’ belief that American history is simply one endless racial dispute, and the view advanced in Foner’s book that, “the Negro was the central figure and the most effective in Reconstruction,” masks a much more complex reality.
