Test test test test test test test test test test test test test test test test test the war is about slavery. The Iowa Supreme Court declares segregated schools are unconstitutional under the iowa constitution. So that we have the precursor to brown before there is a 14th amendment. This is clark versus directors of the muska tin schools. Clark will be the u. S. Ambassador to liberia in the 1890s. The long reconstruction is about the changes taking place when a man sues to get his daughter into the Public Schools to be coming in as a u. S. Ambassador to liberia. A year after the war ends, the con fed rats are still running their legislatures and pass black codes and within two years those black codes are all repealed as africanamericans and white unionists begin to take over southern legislature. A revolution in law that takes place, an obvious example to say its now okay for africanamericans and white americans to get married in the south. This is part of the revolution in law in louisiana. I will pass back and circle back to this in a second that says you cannot pass people on river boats in louisiana, thats a violation of the law in louisiana. Blacks begin to hold office. This is a legal as well as a political process because you have to be able to legally vote in order to hold office and able to legally hold office. Blacks vote the black vote helps elect grant in 1868 and helps reelect him in 1872. Hiram revels enters the senate in 1870. For historians of the constitution whether rebels can be a u. S. Senator is an interesting question because the constitution says you have to have been a citizen of the United States for a certain number of years before you can be a u. S. Senator. Under dred scott, revels was not a senator for that many years in 1968 but only two years. No one questions his right to get a seat because everybody understands the citizenship clause was retroactive and he was a citizen by his birth in the United States. Revels enters the senate, the first in the legislature followed by six in the house. There are more than 15 africanamericans who serve in congress by 1890 and two in the senate when Blanche Bruce follows revels. There are a significant huge number of blacks and state Office Holders, sheriffs, county clerks and this is a revolution in politics and revolution in law. In the meantime in the north the same revolution is taking place. In the 1880s, Benjamin Arnett is in green county, madam president , is in which state . Ohio. Ohio. She is a loyal buckeye. And Benjamin Arnett is not from a black district. Green county is an overwhelmingly white county. They send Benjamin Arnett to the Ohio Legislature in the 1880s and he repeals all race discrimination in ohio at that time. My colleague, randy kennedy, will shortly be talking about the 1875 Civil Rights Act and civil rights cases of 1883. I just want to make one prelude to that. The 1883 decision in the civil rights cases is one of the keys to the Supreme Court destroying reconstruction by declaring the 75 act is unconstitutional. The 75 act was what we call an equal accommodations act, saying you cannot discriminate in public accommodations, such as hotels, theaters, street cars, restaurants, et cetera. After that act is overturned by the court, virtually every northern, midwestern and Western State passes its own equal accommodation act essentially doing in state law what the supreme says the federal government cannot do at the federal level, which means when we get to the decisions like plessy, where the court says, well, segregation is fine. We have to understand the court is not implementing the will of the people of the United States because the states which contain the majority of the population in the country have in fact passed laws to say that we are opposed to segregation. Furthermore, if you take this analysis, which is often given by some scholars, well, the court is just following public opinion, obviously its not plowing the majority of the people of South Carolina who are black or the majority of the people in mississippi who are black, who arent in favor of these segregation laws. This theory the court is doing what it must do to placate the majority of the country is in fact nonsense. The court is doing what it is doing because the court is doing what it wants to do. Thats what we need to understand. Just as iowa in 1866, indy greats its school, the Michigan Court refuses to impose the one drop rule whether or not somebody is black when it comes to Voting Rights case. In people versus dean. Dean is prosecuted for voting. The democratic prosecutor doesnt like the idea that blacks are vetting in detroit because detroit voting in detroit because the blacks are likely to vote republican. The Supreme Court overturns the conviction saying we have no definition what it means to be black in this state. Our definition will be if youre half white youre not black and therefore you can vote. This is as close as they can go given the constitutional provisions in michigan but an important step forward. Bat in, ohio implemented the same rule in the 1850s. When we think about what is going on in reconstruction at the Northern State level and congressional level, it is very different than what the Supreme Court is going to do. The michigan Supreme Court notes that there is a distinction between who would be classed as white or not white and no one in michigan had ever quote advanced the absurd notion that predominance of mixed blood on one side or the other was any given standard and has the remotest bearing on personal fitness or unfitness to be in the political process. This is 1866, part of a huge revolution in Race Relations. In 1871, the Michigan Legislature prohibits segregated schools. In 1883, the year the Supreme Court uphold as prosecution for an interracial marriage in alabama, the state of michigan repeals its last remaining restriction on Race Relations which involved interracial marriage. We have the country still going in two directions, most Northern States accepting the outcome. This doesnt mean there is a racial nervana in the north. It doesnt mean bigotry has disappeared. It means at the formal level the Northern States, even states which are notoriously racist, like indiana and illinois, states which were the last two states to restrict black migration into their states, even those states are passing Civil Rights Acts. In 1884, ohio, new jersey, colorado, minnesota passed new Civil Rights Acts in response to the civil rights decision in 1883. In allegheny 85, michigan, indiana, illinois and nebraska passed similar laws. In 1887, my new home state of pennsylvania passes such a law. Kansas had done so in 1874, before the 1875 Civil Rights Act had even been passed, as had massachusetts. If we had only looked at the history i just set out, we would think that reconstruction is going to be a success. Its a success in congress. A success at the Northern State level. A success at the political level in the south. But, of course, this does not happen. One of the reasons it doesnt happen is because the north runs out of energy, because the democrats are resurgent, taking one house of congress towards the end of reconstruction, because many northerners are not happy with the results and political elections, as we learned yesterday, are always very close. The other reason is because the United States as a nation does not have the stomach to have a real reconstruction. We do mobilized the army much too quickly. Bat in, we learned from this experience after world war ii. We do not demobilize the army after world war ii. We do not say we wont have exnazis running around again. We have a serious reconstruction in germany and japan and that was, i think, a fact of policymakers who studied history in college and know maybe we have to do Something Better this time. We dont do it, its a different world, one could have made the argument, the dream you could have kept the army in the south for 10 years is too hard. It could not have happened. I do realize there are Army Soldiers in the south but im talking about a serious military reconstruction. It doesnt happen. The other reason it does not happen because the country does not have the stomach for nuremberg like trials and jeffrey is set in Castle Island for a year and then let go. Even though confederate troops had committed war crimes by the definition of war crimes at the time, slaughtering black soldiers surrendering, capturing and selling black soldiers into slavery. When robert e. Lee marches into pennsylvania, even as he is scampering back to virginia having had half his army destroyed, he takes time to capture free blacks in pennsylvania and drag them back to the south and sell them as slaves. When he invaded maryland, he did the same for free blacks in maryland. Maryland is a slave state but half the black people in maryland are free by the time of the war. The south is committing war crimes but we dont prosecute anybody except captain wartz for andersonville. I want to give you a very quick Supreme Court history. I dont want to go into the details of cases. If anybody wants im happy to give you suggestions. I suppose i would say the first place to start is a book called the march of liberty, a two volume constitutional history of the United States. But im the coauthor of that book and that would be shameless selfpromotion and i would not want anybody to accuse me of that. I will add that my books are out with Harvard University press, again, im shameless. Here are ways the Supreme Court begins to undermine freedom. First is it prevents the punishment and disfranchisement of southerners for their treasonness behavior. In 1867, the Court Hears Two Cases cummings versus missouri and exparte garland in which southern sympathizers had been prohibited from voting or in the case of garland, practicing law under what is known as a test oath. It said, if you cant swear youre loyal, you cant vote and be part of the political process. The Supreme Court says congress has no power to pass this law. The result is very early on, former federal con fed rats are back in the political process in a very strong way. It prevents the confederates from protecting blacks. In u. S. Versus crooksank in 1876 and United States v harris in 1883, the court eviscerates federal laws designed excuse me the court eviscerates federal laws designed to allow the federal government to protect the newly made citizens from southern white violence. Crookshank is the most famous example approximately 100 blacks are killed at a political rally in louisiana. Nothing is done about it. Finally in williams versus mississippi in 1898, the court rules that it is not discriminatory for mississippi to never have blacks on criminal jury trials as jurors because the court says the blacks arent allowed to vote not because theyre black or former slave owners but because theyre all illiterate and ignorant and therefore its proper to keep them off the juries and keep them off the voting rolls and once theyre off the voting rolls, theyre off the juries. They are complicitly racist in the south at the same time, blacks in the north are Office Holders and serving as juries. In the majority of the nation, this ruling isnt going to have any effect. Where the majority of africanamericans live, 90 of africanamericans live, this ruling has a profound affect. In the slaughter house cases the privilege and immunities clause were designed to force the Southern States to accept the bill of rights and apply it to their own citizens and force Northern States to do the same. The notion was you dont have political equality if you dont have fair speech, if you dont have fair jury trials or processes of law. The court says, no, thats not what privileges of immunity of citizenship means. The court of nine very smart justices cant define what the privileges of immunities and citizens are. They say southern blacks are not protected from the who it majority that is now beginning to oppress them. It prevents the government from protecting black civil rights in the civil rights cases, in 1883. I will not go into them because randy is going to talk about them in much greater detail. It protects and prevents the federal government from protecting the black vote. In United States versus reese, we have a situation where a black has offered to pay the poll tax and gone to the clerk and said, heres my poll tax so i can vote and the clerk says, i dont want to take your money because youre black. He shows up to vote. The court says hes not being denied the right to vote because hes black, being denied to vote because he didnt pay his poll tax. Only by the most absurd analysis, the dis scent from Justice George hunt from new york cites two major slave cases, pennsylvania and abe bellman v booth, for the principle before the war congress had the power to protect the rights to southern whites to grab people in the north and bring them to the south. Why cant the federal government now protect the rights of blacks in the south to vote. The legal theories are identical and everything has changed and now not going to give to blacks what the Supreme Court had been willing to give to white slave owners. Reconstruction is being destroyed case by case, chip by chip, argument by argument. It prevents protecting equality in the Southern States through the Commerce Clause. This is really interesting. As we know, the Commerce Clause regulates come mers between states. The court has often said that a state cannot pass a law which interferes for the simple benefit of to the state. Example, indiana cant pass a law that says if you drive a through through indiana, you have to get indiana plates, or you have to get an indian drivers license. That would interfere with interstate commerce. Thats a simple dumb analysis. The Indiana Legislature passes a law that says steamboats, stagecoaches and railroads cannot have segregated seating. Hall, a ship captain, segregates madam decur, an africanamerican woman of both french and african ancestry in louisiana and does not let her sit where she had been sitting, where she had paid for her seat. The Supreme Court says the louisiana law is unconstitutional because it will interfere with interstate commerce. It means when a ship comes into louisiana from tennessee and arkansas, goes down the river, they have to rearrange all the passengers because they have segregated seating on the ship and now they have to integrate. However, this is where it gets to be weird unless you realize the legal theory of the court is not consistent legal theory but racial oppression. In 1890, louisville new orleans and Texas Railroad versus mississippi, the railroad sues to prevent having to move passengers when the railroad goes into mississippi. The Louisville Railroad says, look, people get on the train in kentucky, we dont care where they sit, sit wherever they want. When we get to mississippi we have to move everybody around because of the mississippi segregation law. The Supreme Court says, thats okay. That doesnt interfere with interstate commerce but only interfere if you make the ship or rail segregate but the ship is somehow not interfering with interstate commerce. This is the setup for plessy versus ferguson, which bless his separate but equal but plessy is not the real important case. The key case is the one randy will be talking about in civil rights cases. That is the one where the africanamericans realize we are doomed by this Supreme Court. That is 1883. By 1896, the game is mostly over. Even with the game mostly over there are still persistent people in the south and north who believe in equality. One of the persistent naysayers in the south were the trustees of beretia college in kentucky. Beretia college had been an antislavery college in kentucky although quietly before the war. After the war it is integrated. Kentucky segregates its Public Schools. Fine, they can do that. The court says thats okay. Kentucky seg gaits its university. Thats fine. As we know, kentucky doesnt integrate its Basketball Team until what is now university of texas, el paso, in those days, the texas school of minds defeats them in a National Championship with a team that has about half of the team are black players. Thats what it takes for kentucky to discover, maybe integration wouldnt be such a bad thing. Kentucky then goe