American History Series: Distinctions of Rights

I’m continuing to enjoy reading Eric Foner’s new book The Second Founding: How The Civil War And Reconstruction Remade The Constitution in part because it sheds so much light on the ongoing Sohrab Ahmari vs. David French debate within mainstream conservatism.

“The Reconstruction amendments can only be understood in terms of the historical circumstances and ideological context in which they were enacted. These include how they were approved by Congress and the states; what those who framed, debated, and ratified them hoped to accomplish; and how other Americans understood and attempted to use them. In the chapters that follow my purpose is not so much to identify the one “true” intent of the Reconstruction amendments, as to identify the range of ideas that contributed to the second founding; to explore the rapid evolution of thinking in which previously distinct categories of natural, civil, political, and social rights merged into a more diffuse, more modern idea of citizens’ rights that included most or all of them; and to suggest that more robust interpretations of the amendments are possible, as plausible, if not more so, in terms of the historical record, than how the Supreme Court has in fact construed them.”

This is an important point.

Americans didn’t think about “rights” in the same way today that we did before the War Between the States. This is particularly true of the South. Every Southern state was a slave state. The Constitution had secured slavery. It was the states that determined citizenship, not the federal government, and blacks weren’t citizens of any states in the antebellum era outside of New England.

There was no such thing as negro equality – natural, civil, political or social – and the mainstream consensus of the antebellum era was a strong denial of it. There used to be sharp distinctions between these various categories of rights. Ultimately, the Supreme Court decided that blacks weren’t eligible to be American citizens at all in the Dred Scott decision, which is why the 14th Amendment had to be passed during Reconstruction to uphold the constitutionality of the Civil Rights Act of 1866.

“Citizenship certainly did not imply equality. Whites, male and female, born in the United States were commonly assumed to be citizens, but the status of free black Americans remained highly controversial. The first Naturalization Act, approved by Congress in 1790, limited the process of becoming a citizen from abroad to white persons. What of free blacks born in the United States? At the time of ratification, most of the original states, including some in the South, allowed free black men to vote if they met the property or other qualifications. As time went on, however, the slave states placed severe restrictions on their lives and increasingly refused to recognize them as citizens. Some northern states did, however, and all accorded them basic rights such as property ownership, trial by jury, and the ability to hold public meetings, publish newspapers, and establis their own churches. But nowhere did free African-Americans enjoy full equality before the law. Their situation was anomalous – one jurist referred to free blacks as “quasi citizens.”

Few people know this but blacks enjoyed more rights in the immediate aftermath of the American Revolution. There was an abolitionist movement that even promoted racial equality in the 1790s. Then it all fell apart during the Jefferson presidency, scientific racism triumphed and there was a steady erosion of black rights over the next half century that culminated in the Dred Scott decision. Blacks were once citizens of Pennsylvania, but lost citizenship there in 1838 due to the opposition of the Irish.

“But with the exception of Maine, every state that entered the Union between 1800 and the Civil War limited the suffrage to white men, and over time some of the original states rescinded blacks’ right to cast a ballot. On the eve of the conflict, black men enjoyed the same right to vote as their white counterparts in only five of the thirty-four states, all in New England. The identification of the polity – and citizenship itself – as a realm for white men became “so natural and necessary as to be self-evident,” as one historian has put it.”

The White Republic was the mainstream consensus outside of New England down to the War Between the States. Within New England, Connecticut also rejected negro equality until the Reconstruction era.

“But the concept of equality before the law – something enjoyed by all persons regardless of social status – barely existed before the Civil War. Belief in equality coexisted with many forms of second-class citizenship. Individuals’ rights were determined by numerous factors, including race, ethnicity, gender, and occupation. Unequal status relations were built into the combination of local laws, judicial rulings, and customs known as the common law. In “a common law court,” Senator Jacob M. Howard of Michigan declared during the Civil War, the idea of equality before the law was “not known at all.” In accordance with the common law of coverture, most of the rights of married women were exercised by their husbands. The common law of master and servant distinguished sharply between the rights and powers of employers and employees. Rights often included the ability to exercise authority over others – as in the case of slaveholders, employers, fathers, and husbands. This is one reason why the extension of rights to African-Americans during Reconstruction was seen by many whites as taking something away from them.”

There were vast restrictions and limitations upon individual rights before the War Between the States because the power relationship between the states and the federal government was reversed. There was no such thing as equality before the law. The states decided most of these matters.

“During the Second Founding, a new definition of American citizenship, incorporating equal rights regardless of race, was written into the Constitution. … In the legal culture of antebellum America, all sorts of activities – economic, political, personal – were subject to regulation by localities and states with the aim of securing not equality but public order, health, safety, and morality. Anti-black laws represented one component of a panoply of legislation restricting the rights of various groups, among them paupers, prostitutes, vagrants, and immigrants. Inequality, as noted above, was built into the common law. As long as citizenship remained subject to local definition and regulation, citizens would be manifestly unequal.”

It was the Confederacy that fought to defend the old America made up of organic communities that was a White Republic that was comfortable with inequality and limited government.

It was the Union that fought to create a new consolidated and centralized nation-state based on liberal democracy, free-market capitalism, industrialism and abolitionism.

In that war, one side fought for classical republicanism and the other side fought for liberal democracy. This is a subtle, but hugely important philosophical distinction.

About Hunter Wallace 12380 Articles
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  1. So, how do we get states’ rights back? Even if we get such a reversal of centralized power, you are in favor of authoritarianism, HW. So, would people just released from DC’s clutches want to place themselves under even more restrictions? We’ve become programmed to accept that “all men are created equal,” even though that was written in the context of educated Englishmen speaking to each other. How do you thread the philosophical needle and balance individual rights and communal responsibility?

    • Your answer is authoritarianism. Which will come when liberalism dies, and the situation becomes Hobbesian. Am I right?

  2. The New England states had the luxury of having very few blacks to deal with and most of them were well socialized into white customs and norms of behavior. This allowed the ruling class to indulge their fantasies that all men are created equal. This situation still prevails in most of New England and the ruling class i.e. the university types still indulge their various absurd fantasies. Pocahontas, although originally from Oklahoma and a millionaire opportunist par excellence epitomizes this way of thinking.

    It’s interesting that Connecticut rescinded the rights of blacks. Perhaps this was because of the Amistad rebellion in 1839 and the subsequent trial in New Haven, Connecticut where the black captives were held. Many of the blacks were transported back to West Africa after being freed from captivity. I guess up close and personal with diversity will change anyone’s mind.

      • Great work Hunter. Thanks. We need to get this in all textbooks. As you know, each year there’s a fight between right and left as to how much further left all textbooks will go THAT year. We’re losing.

      • Correction noted, thanks for researching these issues so thoroughly. Perhaps the growth in the antebellum black population of Philadelphia influenced the legislature?

  3. They’ll wipe us out like all other stalled movements in history. Let’s be real, the southern movement was dead and it will remain dead since 1866. Do you really think our masters will allow us to get any such movement going again? Even during our civil war the enemy was within north and south. It was an extermination war just like all the rest when the top notch diplomatic aristocracy escape bullet wounds. Custer was a Swiss Amerikan, so wasn’t Hoover get the hint? Amerikan history is bunk unless you owned all the factories making the guns and ammo whilst aristocrats were writing the history while our ancestors died for not knowing why they died. …and look at us today? Don’t believe everything you read, there is no right or left just the imagination of our so called academic historians who are paid to spread lies or they will not be published. Some people get it and some don’t. There is their reason for division, always had and will always be, they don’t want us to be the fasces.

  4. Hypothetically, when we take power will we even go back to states’ rights philosophy after having teamed up with ur-centralizers like the fash and other big- S Statists? Dixie to my mind is a nation of one people, true, but the Neo-CSA or whatever must be an economic and military alliance of various states. We have suffered too much under the fake “federal” system as it has existed since 1865 to really fight for that, even if we can trade a liberal fuhrer for a based right wing one. Maybe I’m wrong, but this has been on my mind lately. Perhaps we need to give some thought to what “our” kind of government would even look like. We gotta know what we’re shooting for.

    • Without guaranteed pensions and health care, good luck getting people to want to discard centralized gov’t. Unless DC becomes a neutered money distributer, like a late Rome with a printing press, the peasantry will be uneasy about state’s rights. They don’t give a crap about the Constitution; they want those checks to keep rolling in.

  5. It all comes down to agricultural with white survival, the south and lower south west states have the climate to produce food longer than the northern hemispheres, North America our Europe/northern Asia

    The long game is food and storage for future use.

    Living in the northern states, a winter can kill you quickly from December to March with out a heating source and long time preservation of food, with the next growing season.

    Living in the mid Atlantic states I see why Yankees are hardly with a Winter coming!

    And southerners are not equipped for a harsh long northern white winter! The same for niggers, spics, and sand nigger Arabs near the equator.


    ARTICLE III, SECTION 1. “Every free male person who shall have attained the age of twenty-one, and who shall be a citizen
    of the United States,.

    (Indians not taxed, Africans and descendants of Africans excepted,) shall be deemed a qualified elector.”*

    SEC. 3. “No person shall be a representative unless he be a
    white citizen of the United States. .

    SEC. 10. “No person shall be a senator unless he be a white citizen of the United States,. .

    Article VII, Sec. 7. “Separate schools shall be provided for the White and colored children, and impartial provision shall be made for both”

    The 14th Amendment was never ratified by three-fourth of all the States in the union according to Article 5 of the U.S. Constitution. Out of 37 States, 16 had rejected it.

  7. It’s important to always note the the Southern leadership was strenuously opposed to an all white society and fully intended to resume African immigration. Had the South won, it would have quickly become majority black and soon would have had South Africa like demographics. Whites from the non slave owning majority would have fled North in huge numbers to work in Northern factories and to escape the increasing black South, which would have failed to develop in any way under a slave based agricultural economy, increasing the demographic crisis. The whole thing would have collapsed no later than the WWII era and left an overwhelmingly black South.

    Trying to rehabilitate the Confederacy is a mistake.

    It’s also important to note that blacks were legally barred from living outside of tiny enclaves in most of the North until the 1950’s.

    • I was talking with a co-worker recently regarding the politics/history of The South. He gave the usual talking points (State’s Rights, Federal over-reach, righteousness of the Confederacy). There was a belief in the north about a “Slave-Power Conspiracy”. That being slavery would eventually spread north, and displace the white working class. You rarely hear this discussed anymore, as it goes against the narrative of a righteous army liberating blacks. Mike Enoch discussed this once on The Daily Shoah, whites in the north fought to keep blacks from coming north and displacing them.

      The Confederacy and Slavery were bad for white people. Specifically, working class whites.

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