African-Americans generally were denied the benefits of federal land policy. An opinion from the attorney general’s office was necessary to qualify free Negroes for the benefit of the Pre-Emption Act of 1841, and in the 1850s they were frequently excluded from homesteading legislation. From 1810 until 1862, federal law excluded Negroes from the postal service. But nothing so clearly symbolized the caste status of all blacks—free or slave—as the Dred Scott decision. Up to that decision, African-Americans were considered citizens in many northern states, even though they were excluded from suffrage and holding office, in the same way that women and children were considered citizens. They had rights to property, liberty of person, freedom of speech, and access to the courts. After Dred Scott, it was uncertain whether free blacks who had not been citizens at the time of the creation of the Union enjoyed any rights guaranteed by the Constitution. The case was complicated because Scott had not only lived in Illinois with his owner but had also been sold to an abolitionist family in New York. Since the Missouri Supreme Court had declared Scott to be a slave, the justices could have decided that Scott had no status as a citizen or an alien. Instead, Chief Justice Taney and five other justices ruled that because Scott was a black man he could not be a citizen of the U.S. within the meaning of the Constitution because no state could on its own “introduce a new member into the political community created by the Constitution of the United States.”23
It was a convoluted decision intended to tighten the boundaries of caste. Taney made up a theory that all Negroes were meant to be excluded from the political community by the Constitution through its clauses respecting the slave trade and the extradition of fugitives, even though those provisions applied only to slaves. Taney somehow saw confirmation of his theory in the explicit restriction barring naturalization to all but white aliens in statutes passed from 1790 on. The decision, in effect, held that those who created the Union in 1789 formed a closed community that restricted membership to their descendants and to aliens (only whites) brought in by the process of naturalization.24 Taney was wrong in history and in law, but it would take a civil war to affirm citizenship for blacks and the principles of membership in the political community by right of birth.
As Richard Wade has shown, regulations in southern cities controlling the movement and behavior of Negroes tended to be the same for free and bonded blacks.25 In Baltimore in 1850, 90 free Negroes joined 126 whites in petitioning for a school to prepare free blacks for “those humble stations in the community to which they are confined by the necessities of their situation.”26 The system chose white labor—including Irish and German immigrants—over blacks for higher-status jobs. Once free, Ira Berlin has shown, blacks in the South were confined to the bottom of the social order, “despised by whites, burdened with increasingly oppressive racial proscriptions, and subjected to verbal and physical abuse.”27
The number of free blacks grew in the decades before the Civil War. By 1830, there were 319,000 in the U.S., thirty years later 488,000, 44 percent in the South, 46 percent in the North, the remainder in the south central states and the West.28 In the face of almost every form of discrimination, including segregated schools, free African-Americans worked in a diversity of occupations, to that extent modifying the fundamental objective of caste. John Hope Franklin has written that “almost every community had its free Negro carpenters, barbers, cabinetmakers, and brick masons; many had shopkeepers, salesmen, and clerks, even where it was in violation of the law.”29 Some free blacks owned extensive property, including slaves in a few cases, and many developed fraternal and charitable organizations in the tradition of ethnic voluntary pluralism, particularly in the North, where they also established and joined abolitionist societies. A tiny number went to predominantly white colleges. Some became writers, poets, and physicians. But while caste pluralism was not airtight, it worked largely as it was intended until passage of the Thirteenth Amendment in 1865 abolished slavery.
The Changing Nature of Caste After Emancipation
Encouraged by emancipation and the adoption of the Thirteenth Amendment, African-Americans formed state associations of the National Equal Rights League; they lobbied to end policies of racial segregation and discrimination in many states; and, in some places, they won. In Iowa, the Negro Exclusion Law was repealed; in Ohio, the legislature provided that impoverished colored persons could be eligible for relief; in Illinois, the ban on the testimony of blacks in state courts was ended. Impressive reforms were achieved in the upper midwestern states in 1864 and 1865. Nevertheless, the situation in Indiana probably was more typical of the North’s determination to exclude blacks from basic rights. In September of 1865, the governor of Indiana pointed without shame to the fact that blacks were not only excluded from voting but from testifying in courts of justice; they even were kept from public schools and from acquiring title to land.
In 1864, even after Lincoln’s Emancipation Proclamation, Congress continued its traditional policy of disenfranchising blacks in the territories and the District of Columbia; in 1865, it voted to perpetuate racial segregation in the Union army and in the public school system of the Capital; even in the midwestern states of Iowa, Minnesota, and Michigan, where blacks were few and where sentiment for equality was as strong as anywhere in the country, the state legislatures permitted cities and towns to establish segregated school systems.30
Because the Thirteenth Amendment said little about the position of blacks as members of society other than that they were free, a Reconstructionist Congress passed the Civil Rights Act of 1866, which specified that they would have fundamental rights as citizens of every state and territory in the U.S. They could enforce contracts, sue, give evidence, deal in property, and have the benefit of laws to protect their persons and property the same as white citizens. When doubt was raised about the constitutionality of the Civil Rights Act of 1866, Congress met to consider a Fourteenth Amendment. The amendment later would become (along with the First Amendment) the fundamental charter of human rights in American society—the crux and the fulcrum of the redefined and expanded civic culture of the 1970s and 1980s. Opposition, even in the North, was strong. Senator Thomas Hendricks of Indiana argued that white men “had a right to exclude the colored man if they saw fit … this is a white man’s government, made by the white man for the white man.”31 In the House of Representatives, Andrew Rogers of New Jersey echoed that view: “Sir, I want it distinctly understood that the American people believe that this government was made for white men and white women.”32
Passage of the Fourteenth Amendment, and its ratification by the states, and of subsequent civil rights legislation by Congress was made possible by the political dominance of radical Republicans and the occupation of reconstructed southern states by Union troops.
Caste pluralism was abolished on paper under the cover of Union bayonets, mainly by men such as Senators Charles Sumner of Massachusetts and Daniel Cook of New Hampshire, who had little to do with blacks in their daily lives and who were not in a position to enforce the laws they wrote. The most far-reaching amendment to the Constitution ever enacted, the Fourteenth Amendment provided, in Section I, that any person born or naturalized in the U.S. is a citizen of the U.S. and of the state wherein he or she resides. Then, in what became the basis of the civil rights revolution of the 1960s and 1970s, the amendment stipulated that “no state shall make or enforce any law which shall abridge the privileges or immunities of citizens in the United States; nor shall any state deprive any person of life, liberty or property, without due process of law; nor to deny any person within its jurisdiction the equal protection of the laws.”
Even after