McKee was speaking in favor of the Fifteenth Amendment to the Constitution, which provided that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.” The Fourteenth had decided citizenship, but the question of suffrage remained open, since states had total responsibility for specifying voting qualifications. McKee’s point was that citizenship meant nothing without the right to vote, a position echoed in the other chamber by Reconstructionist Senator Adonijah Welch of Florida, who argued that blacks would never be truly free without political power.34 Other senators argued back that blacks were incompetent to vote; but the Fifteenth Amendment, like the Fourteenth, was passed by a Congress controlled by radical Republicans, including some from the formerly rebellious states occupied by Union troops and now under Reconstruction.
At the time of ratification of the Fifteenth Amendment in 1869, only seven northern states had acted to give African-Americans the vote, and not one state with a large black population outside the South had done so. The former slaves were citizens who were protected in certain fundamental rights; but when the Supreme Court cast doubt on the full sweep of the Fourteenth Amendment in 1873, the Reconstructionist Congress passed the Civil Rights Act of 1875, the most sweeping legislation of its kind until 1964, asserting, among other things, that all citizens “of every race and color” were entitled to equal enjoyment of public accommodations.
The amendments and laws of the post—Civil War Congresses and ratifying legislatures in the states—the acts of the victors in war—were on the books. But what of the real constitution, the feelings, opinions, and behavior of the American people? And what of the willingness of the U.S. Supreme Court to give meaning to those words in such a way as to affect the everyday lives of blacks? In 1870, Congress had passed a bill directed specifically at the Ku Klux Klan, making it an offense for two or more persons to go in disguise with the intent of intimidating any citizen from exercising or enjoying any right or privilege secured by the Constitution or the laws, but, in a decision only one year after passage of the Civil Rights Act of 1875, the Supreme Court said that only the State of Louisiana, and not the United States Congress, could guarantee the rights of its citizens.35 The Court declared the Civil Rights Act of 1875 unconstitutional, saying that only state action denying equal protection of the laws was prohibited by Congress in the Fourteenth Amendment. Private citizens who owned theaters or hotels could deny their facilities to blacks if they wished.36 By 1892, the year in which Ellis Island was opened as a gateway for what would become more than ten million immigrants, ten southern states had passed laws separating blacks from whites on trains. In 1895, the Supreme Court, citing an 1849 decision of the Massachusetts Supreme Court allowing segregation in the schools in that state, concluded in the infamous Plessy v. Ferguson case that segregation on railroads as prescribed by a Louisiana statute of 1890 did not deny equal protection of the laws.37
In his dissent, Justice John Harlan set the standard to which the Court would return in 1954, more than half a century later. But his was a lonely voice in asserting that “the law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.” Harlan acknowledged that the white race was dominant in education, wealth, and power, but that did not justify whites’ denying basic, fundamental rights to blacks since those rights were now clearly guaranteed to all persons in the U.S. Segregation on railroads put “the brand of servitude and degradation upon a large class of our fellow-citizens, our equals before the law.” Then, in the standard which he set for generations to come, Harlan expressed a view probably of only a small minority of the American people. “There is no caste,” he wrote. “Our Constitution is color blind.”38
The real constitution, the deep and wide consensus of the American people on the position of blacks in American life, was far from colorblind. Almost twenty years before Plessy, the American people acquiesced in a deal that elected Republican Rutherford B. Hayes president in 1877 in exchange for removal of federal troops from the South and the end of Reconstruction. Soon, many blacks who attempted to vote were terrorized and states began to enact statutes to institutionalize blacks’ exclusion from the political process. Louisiana passed the first of the famous “grandfather clauses,” under which the right to vote was given to all male citizens whose fathers or grandfathers had been able to vote on January 1, 1867. Schools were segregated, and curfews applying exclusively to blacks were imposed.39
Keeping blacks in a servile state meant the vast majority remained landless and constantly in debt. Those who owned their own farms were maintained in a dependent state through the lien system of farm financing, though it actually burdened many more poor white farmers than blacks. Rational economic behavior might have led the much larger number of poor whites to join forces with blacks against the system,40 but most whites “never questioned the sacredness of caste, never stopped wanting the greatest subordination of ‘idle and unreliable’ black labor.” As one labor historian of late-nineteenth-century Georgia put it, “whether planter or poor, whites continued to believe that a proper caste system would assure their own prosperity.”41
Within twenty years of Plessy, the evidence of racial caste was everywhere in the South. Restaurants, drinking fountains, theaters, circuses, hospital floors, barber shops, juries, public parks, schools, and all manner of public accommodations were racially segregated. Although class divisions among whites were strong, there was nearly universal agreement among whites that blacks should be confined by what one historian of the South has called an “inherited, inflexible system with a literal moral authority.”42
With the end of Reconstruction, the lives of many blacks became more precarious than under slavery. As blacks moved from the South to the North and West, racial animosity increased in both sections. The burning of homes and churches and individual acts of unprovoked violence were commonplace in the North against African-Americans, who were driven out of many cities, and violence against blacks reached new levels of terror in the South with the rise of the Ku Klux Klan and the Knights of the White Camelia.43
Terrorist attacks on freed blacks in the South appeared to succeed with the support or acquiescence of the vast majority of whites. After 1870, terrorist intimidation kept blacks from the polls. Houses were burned, crops destroyed, and blacks were whipped and lynched for voting Republican. Lynching became the ultimate sanction against blacks who were so uppity as to agitate for voting rights. The prevalent view was that blacks of any station, even those who owned property and went to college, should not vote. One Mississippi senator exclaimed, “I am just as opposed to Booker Washington as a voter, with all his Anglo-Saxon reinforcements, as I am to the coconut-headed, chocolate-colored, typical little coon Andy Dotson who blacks my shoes every morning. Neither is fit to perform the supreme function of citizenship.”44
Caste followed American blacks into the armed services in the First World War when all units were segregated. Following the lure of freedom and opportunity, one million blacks moved from the South to the North between 1915 and 1925, leaving the caste system of the South for a different kind of caste in the North. As was true whenever large numbers moved to the North in search of jobs, violent racial clashes became common, the worst of them in 1919 in Chicago and East St. Louis, Illinois, where at least forty Negroes were killed.45 The violence was massive in cities throughout the country (more than twenty-five race riots in urban centers) in the “Red Summer” of 1919. It was one thing to draft blacks or hire them to fight in a war; it was another to let them work alongside whites