States’ Rights to Racism: The Existential Fight to Enshrine Civil Rights in the Constitution

The Thirteenth Amendment reads briskly. Split into two sections, the first states, “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.” The second provides that “Congress shall have power to enforce this article by appropriate legislation.”

Congress can only enact what the Constitution allows. In Article I, Section 8, the Constitution lists most of Congress’s enumerated powers, like the powers to maintain an army and a navy, tax, borrow money, regulate interstate and foreign commerce, coin money, establish Post Offices, and “to make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers.”

The Thirteenth Amendment’s enforcement clause carried transformational potential, permitting Congress to legislate to ensure Black folk enjoyed the rights provided in Section 1. Those forty-three words, so sweet, so delicious, yet millions force-fed bondage relished their taste only in the afterlife.

The Republican Party, far more supportive of Black rights than the pro-slavery Democrats, imagined the Thirteenth Amendment would stretch beyond ending bondage, and fence the freed people from incursions into their fundamental rights. Republican Illinois Congressman Ebon Ingersoll, for example, expected the amendment would “secure to the oppressed slave his natural and God-given rights.”

Abolitionists argued that enslaved people lacked these rights because the law deemed them property. The new amendment denied state governments, reasoned New York attorney general J. H. Martindale, “a logical argument on which to rest the exclusion of the native-born black man from all the [rights] inherent to citizenship.” States could not degrade one “because he is black, any more than they have the constitutional right to classify and degrade white men.”

In those days, legal thinkers separated rights among three different buckets—civil rights, political rights, and social rights. The right to enter contracts, the right to sue and be sued, the right to testify in court, the right to inherit, own, and convey property fell into the civil rights bucket.

The right to vote went into the political rights bucket. And the social rights bucket involved questions like whether Black people could attend school with White children. Eat at a restaurant alongside White patrons. Marry interracially.

The experiences of Carl Schurz, during a summer 1865 southern tour, indicated those forty-three words would not afford the freed- men equal access to the civil rights bucket.

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Schurz, a German-born union general whose long beard contrasted with his bookish circular spectacles, conversed with a thirty-something-year-old White man who bellyached with a “resigned helplessness” about his plantation’s future. On a steamer carrying him south at the behest of President Johnson, who charged him with taking the post-Civil-War temperature of the locals, Schurz implored the former Confederate officer to “make fair contracts with [the people he once owned] and set them to work as free laborers.”

The man’s anger churned. “There was even a slight flurry of excitement in his voice,” Schurz recalled. “What? Contracts with those niggers? It would never work.” He told Schurz, “Niggers would not work unless compelled to. A free nigger was never good for anything.”

This exchange exemplified Schurz’s experience. White southerners associated Black skin with slavery—a worldview mass-produced through a centuries-long assembly line of racist thought—and nothing could compel them to disjoin the connection.

By the early 1800s, White Americans had demonstrated they viewed Black people as an outsider race. But to the extent that they considered Black people as lower beings, they typically attributed that inferiority to environmental factors that the race could overcome.

Maybe. When Thomas Jefferson expressed in 1784, “I advance it… as a suspicion only, that the blacks, whether originally a distinct race, or made distinct by time and circumstances, are inferior to whites both in body and mind,” such extreme thinking had yet to permeate the mainstream.

But as the nineteenth century plodded onward, abolitionists had developed increasingly persuasive arguments for emancipation, provoking slaveowners to answer with a vicious theory of Black inferiority to defend bondage. Slaveowners championed slavery’s supposed virtues, describing the African as, biologically, suited perfectly for enslavement and improved by it because proximity to Whiteness gifted him knowledge and culture unavailable to him in his former state of savagery.

William Gilmore Simms, a writer and South Carolina politician, spoke for slaveowners when stating, “I do not believe that [the African] will ever be other than a slave, or that he was made to be otherwise; but that he is designed as an implement in the hand of civilization always.” Thomas R. R. Cobb, Georgia politician and lawyer, professed that an African’s “natural affections are not strong, and consequently he is cruel to his offspring, and suffers little by separation from them,” to rebut the charge that slavery unleashed monstrous pain.

Society, in fact, needed to continue slavery for the interests of both Black and White since unshackling enslaved people would spark the race’s reversion to barbarism, imperiling White society. As Dr. Samuel A. Cartwright promised, “the negro must, from necessity, be the slave of man or the slave of Satan.”

On his return north, Schurz advised Johnson that “although the freedman is no longer considered the property of the individual master, he is considered the slave of society, and all the independent state legislation will share the tendency to make him such.”

Schurz spoke truth. Beginning in winter 1865, with slavery outlawed, southern states enacted Black Codes. The freed people, per the codes, could make contracts, sue, be sued, and testify in court, although some codes restricted their testimony to conflicts involving only Black parties.

The rights curtailed, however, defined the codes. Most southern states legally compelled freed people to sign labor contracts that they could not breach without risking, oftentimes criminal, sanction. An implied right not to enter a contract coexists with the right to enter a contract, but the codes refused such liberties.

Black folk, overwhelmingly illiterate, would often sign one-sided contracts whose few beneficial terms they struggled to enforce in hostile courts. The Union freed Black folk, but the dilemma of race persisted. Despite those forty-three words, the ghoul that the North Carolina Freedmen’s Convention feared most had risen—caste preservationists debuted a new caste system.

Those seeking civil equality for the freed people needed a sharper blade.

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On December 4, 1865, the first day of the 39th Congress’s first session, Republican Pennsylvania congressman Thaddeus Stevens paced toward the South Wing of the U.S. Capitol, shouldering the hopes of Black Americans.

Months before, Stevens feared President Johnson was pursuing a Reconstruction program that would readmit Confederate states to the Union without them exorcising the demon that animated secession. Stevens had articulated his dismay in a Lancaster, Pennsylvania, speech.

“The whole fabric of southern society must be changed,” the seventy-four-year-old caste abolitionist with blue sunken eyes told an audience in September 1865. “The Southern States have been despotisms, not governments of the people. It is impossible that any practical equality of rights can exist where a few thousand men monopolize the whole landed property.”

He, and other Radical Republicans, the party faction he led that once demanded a prompt end to slavery, committed themselves to clothing the freedmen in the same citizenship that White folk wore.

Many colleagues shared his desire to wrestle the administration of Reconstruction from President Johnson, start congressional Reconstruction, and restore self-government in the South under leadership that accepted the civil equality of the freed people. Below the House Chamber’s stained glass skylight, Stevens pushed for a committee of fifteen congressmen and senators “who shall inquire into the condition of the States which formed the so-called confederate States of America.”

Stevens joined that committee, which formed nine days later, and it would soon draft an amendment to secure in the Constitution the conditions of the North’s victory.

The Senate Judiciary Committee, during this time, focused on burning equality principles into federal law. Committee chairman Lyman Trumbull, Illinois Republican, authored a bill to protect “fundamental rights belonging to every man as a free man.” Nearly the entire Republican Party, which occupied about seventy percent of congressional seats, voted for it.

President Johnson vetoed it, however, considering it an unfair racial handout. On April 9, Congress overrode his veto, enacting, under the Thirteenth Amendment’s second section, the Civil Rights Act of 1866.

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Stevens’ joint Committee, meanwhile, rededicated itself to proposing an amendment. Champions of this endeavor wanted to engrave the 1866 Act into the Constitution. Angst coursed through Republicans—maybe the Supreme Court would rule that the new amendment never empowered Congress to pass the act and pronounce it unconstitutional.

Should the Democrats recapture Congress, moreover, they could dismantle it legislatively. If Americans enshrined the act in the Constitution, only a repeal could annul their production. Republicans, though, anticipated failure, having previously stumbled in devising a proposal two-thirds of both houses of Congress supported.

On May 8, 1866, Stevens presented to the House the joint committee’s five-sectioned amendment proposal that built on abolitionist thinking. The first section stated,

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The fifth granted Congress the “power to enforce, by appropriate legislation, the provisions of this article.”

“Our fathers,” Stevens stated, “had been compelled to postpone the principles of their great Declaration [of Independence] and wait for their full establishment till a more propitious time. That time ought to be present now.”

As the congressmen watched from their ornate oak desks and chairs, Stevens said,

the Constitution limits only the action of Congress and is not a limitation on the States. This amendment [fixes] that defect and allows Congress to correct the unjust legislation of the States, so far that the law which operates upon one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree.

This new proposal would cure the illness ailing southern states, Stevens argued, where “different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin.”

He championed the proposal because “unless the Constitution should restrain them those States will all, I fear, keep up this discrimination, and crush to death the hated freedmen.”

With representatives from the disloyal states still unseated in Congress, New Jersey Democrat Andrew Jackson Rogers articulated their perspective. “I want it distinctly understood that the American people believe that this Government was made for white men and white women,” the caste preservationist declared. “They do not believe, nor can you make them believe—the edict of God Almighty is stamped against it—that there is a social equality between the black race and the white.”

The amendment proposal prevailed anyway, and two years later, on July 28, 1868, Secretary of State William H. Seward certified the Fourteenth Amendment’s ratification.

Before this amendment, Congress could not enact legislation to counteract civil rights deprivations committed by states. The Constitutional Convention delegates who met during summer 1787 set out to structure a floundering nation’s underdeveloped democracy.

The document they created transformed a feckless confederation of thirteen separate mini-republics into a nation of thirteen states under a strong, central federal government, but one whose power was limited by that same document. Those most supportive of a strong federal government convinced the reticent to endorse the Constitution by agreeing to reserve to the states a wide array of powers.

The delegates, therefore, chose not to explicitly grant Congress the authority to act as the custodian of the civil rights bucket. They believed nature, they believed God, granted such basic rights, and allowed the duty to protect them to reside with the states. Already in existence before the Constitution arrived, state governments often did in their constitutions. The 1776 Pennsylvania constitution provided that “no man…can be compelled to attend any religious worship,” for example.

The first ten amendments, the Bill of Rights, operated against federal, not state, intrusion. Simply put, the states safeguarded the civil rights bucket on behalf of their citizens. Southern leaders, however, had long exhibited zeal to invade Black people’s buckets.

The Fourteenth Amendment, consequently, reimagined the relationship between the federal government and the states, promoting the former over the latter. Once the federal Constitution could protect civil rights from state infringement, Congress could pass laws enforcing those rights, and Americans could sue in federal court to prevent states from denying them.

Per the Republicans who championed it, the Fourteenth Amendment consolidated power in Washington, D.C. Turned the guardianship of civil rights into a national obligation. Strangled the conception that the state could narrow, based on race, an individual’s rights. Crushed the South’s states’ rights theory of government.

Two weeks after the Fourteenth Amendment’s ratification, the remains of Thaddeus Stevens lay in state in the Capitol Rotunda. Caste preservationists danced, with one newspaper editor penning, “The prayers of the righteous have at last removed the Congressional curse!” Stevens wanted the Fourteenth Amendment to enfranchise Black men but settled for the achievable.

The amendment charged the federal government with protecting civil equality. Without the ballot, though, could freed people protect themselves?

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From Their Accomplices Wore Robes: How the Supreme Court Chained Black America to the Bottom of a Racial Caste System by Brandon Simeo Starkey. Reprinted by permission of Doubleday, an imprint of the Knopf Doubleday Publishing Group, a division of Penguin Random House LLC. Copyright © 2025 by Brandon Simeo Starkey