by Tony Wikrent
Kenneth Mack | The 14th amendment: its radical past (YouTube)
[Harvard Law School, Nov. 16, 2016, via YouTube]
[TW: Law Professor Kenneth Mack chronologically summarizes the terrorizing events that prompted the writing and passage of the 14th Amendment, and the reactions against it, including:
- the Memphis riot of May 1-3, 1866, in which black Union troops being demobilized were confronted by a white mob that killed 46 local
- the New Orleans riot of July 30, 1866, in which 34 African Americans were killed and another 119 wounded, by a white mob composed largely of former Confederate soldiers
- the horrifying ax murder of a black family in rural Kentucky in the summer of 1868, by two white men, John Blyew and George Kennard. When officials in Kentucky refused to prosecute the two white murderers, federal officials tried and convicted them in the U.S. Court for the District of Kentucky. The state of Kentucky then appealed all the way to the US Supreme Court, arguing Kentucky’s laws prohibiting African Americans from testifying against whites invalidated the convictions. The Supreme Court rejected the Civil Rights Act of 1866, and ruled that victims were not entitled to protection from violations of their rights perpetrated under the laws of the “sovereign” states.
- The massacre of over 100 black militia men by a group of former Confederate soldiers and members of the Ku Klux Klan in Colfax, Louisiana, April 13, 1873. ]
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[National Constitution Center, November 19, 2019, via YouTube]
31:11
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.” What are the privileges or immunities of citizens? Nobody knows… Bingham [US Representative from Ohio John A. Bingham, who drafted the 14th Amendment] had a clear idea — he said those are the liberties protected in the Bill of Rights. Bingham said what this clause will do is require the states to respect the Bill of Rights. Before the Civil War the prohibitions in the Bill of Rights only apply to the federal government. What are the first words of the First Amendment? “Congress shall make no law…” Look at freedom of speech: try to give a speech against slavery in South Carolina — you can’t, there’s a law against it. Doesn’t that violate the First Amendment? No, because the First Amendment is about the federal government. But now Bingham says the now the states are going to have to abide by it.33:18
There was a tradition of sharp distinctions among different kinds of rights: political rights, the right to vote, but you can be a citizen and not have that — women were citizens but they couldn’t vote. That’s up to the states to determine who votes, at least before the Civil War. Civil rights, you mentioned a lot of them a minute ago those are the rights that really make it possible to compete in the labor market: the rights of signed contracts, to sue and be sued, to testify in court, have basic equality before the law…. Republicans by this time thought blacks orught to have all of those civil rights that — that’s what the Civil Rights Act of 1866 says….33:57 — The language is interesting… citizens have to enjoy these civil rights the same as enjoyed by white persons. That’s a very interesting way of putting it. Before the Civil War, the word “white” in law was a boundary, a barrier: only white people can vote… Now they use whiteness as a baseline: if white people enjoy this right, than everybody else has to enjoy it. So it’s amazing… what’s going on here is a complete rewriting of the legal structure of the United States in terms of race. One of the things I used a tell my students, “you know what they are trying to here, if you wonder what their original intent is, it’s what we would call today “regime change.” They are trying to change a regime based on slavery into a regime based on freedom.” That’s what they are trying to do in reconstruction, with these laws and these amendments.

