Thursday, July 24, 2008

The Meaning of the Emancipation Proclamation

Due to the miracle of Blogger's featured blog list, I saw John David Hoptak's blog, The 48th Pennsylvania Volunteer Infantry/ Civil War Musings, and much liked what he offered. Of course, lots of other folks saw his blog that day, to his considerable surprise. (And to his considerable subsequent link spam ...)

The entry that inspires treatment by the Jaded Consumer is "I Just Don't Get It . . .", expressing puzzlement about freedom-loving Americans (just ask 'em) who seem to have something against the author of the Emancipation Proclamation. Naturally, my own take is a bit orthogonal. As a consumer of government interventions, I'm interested in what government has done to ensure genuine emancipation and the circuitous path it's taken, with emphasis on the fact that the route has been so fraught with internal conflict as to have been often ineffective, and so overwhelmed with salesmanship and grandstanding that the history of the path has been overshadowed by recent myth.

The story as I've received it from my elders and from the general media and from authorities on Constitutional law is that the Post-Civil War Amendments to the United States Constitution served to prevent state action to discriminate racially to perpetuate the badges and burdens of slavery. (Incidentally, the literal "slave badge", now collectible, seems to have been a license to work on a slave's own account during idle time, though owners were entitled to a share in proceeds. As regulations varied with location and time, I haven't specifics, but one can read an overview or buy books on it.) The mainstreamed view is that the post-bellum Amendments, being insufficient to halt racially-motivated evil conducted through private rather than government action, were too weak to have the impact of establishing racial equality. The evil flourished until in the wake of the Switch In Time That Saved Nine (given more treatment here, and has some discussion on a government web site here), after which Congress was permitted in effect a general police power under the guise of regulating interstate commerce.[1] Then, the story goes, we got good things like nationally uniform minimum wage laws and weekly hours limits and so forth.

In fact, the Supreme Court upheld a strange smattering of weekly hours caps and wage controls for some industries and not others even before the threat of the court-packing plan. And at least some Southern states really did have enforceable civil rights laws before 1900. And it was illegal for Lopez to bring firearms to school before he was charged with violations of federal laws.

But let's get on to the main event, which is the rights of Ms. DeCuir in the 1800s when she wanted to ride on a riverboat's topmost cabin. She was in Louisiana after the Civil War, and her riverboat operator refused to rent her his "white cabin". She didn't want to ride in the lower cabin he offered her, and she stood willing to pay the extra fee the upper cabin commanded.

But, it's the 1870s; she's S.O.L., right?

Not in Louisiana.

Louisiana's law derives from Napoleonic Code, and is different in a number of particulars from the Common Law one finds in the civil courts of other United States jurisdictions. The Common Law enables courts to craft law that expresses the policy of the State. Thus, the Texas Supreme Court can decide that the Texas Constitutional requirement that every driver be insured against motor vehicle liability means that insurers' spousal exclusions are void and unenforceable as between an insured and the insured's tort-victim spouse. There need be no statute specifying this result for Texas to achieve it, and no-one is shocked that Texas law should develop this way. It is how common-law courts do their work.

In Louisiana, the heritage of the Napoleonic Code achieves the opposite result. The legal presumption that the Code is complete prevents courts from lightly proclaiming new law. Louisiana's post-Civil War Constitution, therefore, despite being replete with proclamations of the Equality of Man, can't be expected to be interpreted creatively in diverse cases to ensure that equality is really protected. The cynic predicts that research will show Lousiana's legislature sat back, giggling when Northerners required Louisiana to write equal protection language into the new Constitution, knowing no court in the state would interpret it to mean a damned thing. Yet ... that was not the result at all.

At the time Ms. DeCuir suffered discrimination at the hand of steam-boat operator Mr. Benson, Louisiana had on the books a transportation-specific statute spelling out that no common carrier could refuse service or otherwise discriminate against prospective on the basis of (among other things) color. Moreover, the statute provided for the award of exemplary damages upon proof of violation. The jury hearing Ms. DeCuir's case upheld her claim and awarded her $1,000.00 under the statute. The award was preserved on appeal all the way to the Supreme Court of Louisiana. Louisiana apparently took equal protection seriously enough to give its statute teeth, and it actually enforced the statute.

Ms. Hall (the steamboat operator's administratrix) appealed to the United States Supreme Court. Her complaint was essentially that as the holder of a federal navigation license, her steamboat operator shouldn't have been subject to state regulation of his business on the Mississippi River. The case offers no evidence the dead Mr. Benson had been aggrieved by anything other than a thwarted desire to discriminate against Ms. DeCuir, and offers no support for the theory that other states' regulation created an environment in which Mr. Benson's business had been endangered by inconsistent regulation between states having ports on the Mississippi. However, the United States Supreme Court came to his aid. Having just announced that the Fourteenth Amendment, and statutes passed by Congress under its authority, had no power to regulate private actors who might discriminate, the United States Supreme Court announced that Louisiana was not entitled to regulate private actors to prevent Mr. Benson's discrimination, either. The Supreme Court, in order to reach this decision, hypothesized that a different state might lawfully make it a felony offense to mix races in the same cabin, which in turn would place operators like Mr. Benson in a nasty bind: to travel between the different ports, he would have to choose whether to violate the law of his origin, or the law of his destination, and his business would be impossible.

In the aftermath of the Civil War, it must have shone like a ray of sunshine upon inveterate discriminators when the United States Supreme Court invited Southern states to pass laws making it illegal to mix races in similar accommodations, vehicles, etc. What racist would have imagined that salvation from having to apply equal treatment to all comers would come from the very federal government that stuffed "equal protection" down their throats at gunpoint?

Had the United States Supreme Court not overturned Louisiana's equal protection statute, imagine the possible result. Might minority confidence in the rule of law have grown sixty years ahead of its ultimate schedule? Might a few whole generations have been saved from institutionalized, legally-mandated segregation? Might Black civil rights lawyers have thrived a hundred years ago in an environment that allowed them to protect their communities with valuable legal rights? Might the relationship between the police and minorities have developed differently across the twentieth century?

Had Louisiana's statute awarding punitive damages not been reversed in 1877, who would imagine that Rosa Parks would have suffered indignity on state-regulated public transit?

Instead, in 1877 the high court of the United States issued a blueprint for official oppression. This instruction was not ignored: in an absolute about-face, Louisiana in 1890 required separate cars for African Americans. The Supreme Court blessed this statute in its 1896 decision Plessy v. Ferguson, which originated in the very same New Orleans courts that had previously upheld Ms. DeCuir's right to equality and awarded her exemplary damages on proof her equal rights had been violated.

So, what does this teach us about emancipation? First, the federal government was wildly inconsistent with its effort to ensure equal protection. The Emancipation Proclamation lacked the power to transfer title from masters to their slaves, and Congress never appropriated funding for a mass taking of property. The Thirteenth Amendment overcame that obstacle, by declaring slavery abolished without reference to compensation. However, the various branches of the federal government failed to work to achieve equality -- or worked at cross-purposes over the subject -- and state-level efforts to ensure equality were thwarted by federal courts. The result was an inability of slave-descended persons to acquire full emancipation due to pervasive and systematic efforts to oppress and marginalize them -- efforts that in some cases trace directly to federal interference on Commerce Clause grounds with genuine efforts to protect civil rights, the violation of which was vastly more deleterious to interstate commerce than the hypothetical risks on which basis the state laws were abolished.

There were other problems with federal efforts to achieve equality immediately. The Emancipation Proclamation, by its own terms, did not apply to any slave located within the states not in rebellion. News of the Proclamation didn't reach slaves for some time, a fact that has given rise to an entirely different celebration, Juneteenth, the celebration of the news of the Emancipation Proclamation, received on June 19, 1865 upon the pronouncement of General Order No. 3 by General Granger upon his arrival to Galveston, Texas. The practical effect of the Proclamation was brought about by force of arms, not words, and the legal effect was begun with amendments to the United States Constitution required to deprive former owners of what had been legally recognized property without the inconvenience of paying them.

The Emancipation Proclamation touched off litigation over slave-financing contracts between slave-dealers and dispossessed owners, of course, and the exact date of emancipation was left for courts to decide. The truth is, however, that until Americans all believe in the justice of Emancipation, and believe in the equality of folks who look different, the nation will be doomed to suffer the expense and inconvenience of inequality and injustice, however maintained, in as many aspects of life as they shall continue to be perpetuated.

I imagine a small child in the back seat: "Are we free, yet?"

Well, we're getting there. We're getting there.

[1] An example of "interstate commerce" being used to achieve non-commercial general police objectives is the Armed Career Criminal Act, a federal law that in some interpretations requires a fifteen year minimum sentence be imposed on a criminal who never crosses a state line or leaves his home county, if he commits several serious crimes. The fact there is federal firearms law at all outside of the District of Columbia, United States possessions, or the like is rather interesting in light of Congress' express authority to define and punish piracy and felonies committed upon the high seas, which under the doctrine Expressio unius est exclusio alterius implies that the right to define and punish other crimes, or felonies committed other than on the high seas, was not granted by the United States to its Congress. Discussion of this here and here.

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