The Origins of Jim Crow

Summary

Dan Snow's History Hit: The Origins of Jim Crow

Episode Overview In the March 12, 2025 episode of Dan Snow's History Hit, host Dan Snow delves deep into the origins of the Jim Crow era, exploring the socio-political maneuvers that established one of America's most oppressive systems. Joined by Aaron Sheehan, the Frederick C. Frey Professor of Southern Studies at Louisiana State University, the episode dissects the intricate processes that transitioned the United States from Reconstruction to the entrenched segregation of the Jim Crow laws.

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1. Setting the Historical Context (05:31 - 06:21) Dan Snow opens the discussion by highlighting the demographic landscape of the Southern United States leading up to and during the Civil War. He references the staggering statistic that, by 1860, approximately half of the 9 million Southern population—around 4 million individuals—were enslaved Black Southerners. Additionally, he notes the presence of about 4-500,000 free people of color in the antebellum South, juxtaposed against a Northern population of 22 million with relatively sparse Black communities outside major cities like Boston, Philadelphia, and New York.

2. Reconstruction and Its Ambitions (06:31 - 08:08) Sheehan explains the Reconstruction era (1865-1877) as a pivotal period where the United States attempted to integrate freed Black individuals into society as equal citizens. He emphasizes the introduction of the 13th, 14th, and 15th Amendments aimed at abolishing slavery, establishing equal protection under the law, and securing voting rights regardless of race, respectively. Sheehan describes Reconstruction as a time of "great possibility," where Black Southerners made significant strides in land ownership, education, and political participation. However, by the mid-1870s, the resurgence of white conservative "home rule" curtailed these advancements, limiting Black inclusion in the political sphere.

3. Federal vs. State Authority (08:20 - 10:24) The conversation shifts to the tug-of-war between federal initiatives and state resistance. Sheehan points out that while federal laws like the 14th Amendment and the Civil Rights Act of 1866 sought to protect Black rights, the vast geography of the South made federal enforcement challenging. He notes, “[...] the American system of federalism [...] historically, the federal government has not played a big role in the kind of everyday maintenance of the rights that we think of as central to citizenship” (07:00). This led to inadequate protection for Black Americans, as seen in the emergence of violent groups like the Ku Klux Klan, which actively worked to suppress Black political and social engagement through terror and intimidation.

4. The Birth and Spread of Jim Crow Laws (14:00 - 26:00) Dan Snow and Sheehan explore how the initial successes of Reconstruction inadvertently fueled the rise of Jim Crow laws. Sheehan explains that as Black Southerners began asserting their rights—such as purchasing first-class railroad tickets—the backlash from white communities led to systemic segregation. He states, “[...] segregation was legally enforced first in settings like railroads, which then expanded into broader societal segregation” (20:32). The establishment of separate facilities and services was codified through state legislatures, often under the guise of maintaining "separate but equal" standards.

A pivotal moment discussed is the Plessy v. Ferguson case of 1896, where the Supreme Court upheld racial segregation under the "separate but equal" doctrine. Sheehan remarks, “The Supreme Court throws up its hands and says laws can't change attitudes... that law sort of follows from that” (34:07). This decision provided legal cover for Southern states to expand segregation across all facets of life, from education and public transportation to marriage and daily social interactions.

5. Legal Manipulations and Disenfranchisement (25:34 - 27:14) Sheehan delves into the strategic use of legal mechanisms like poll taxes, literacy tests, and grandfather clauses to disenfranchise Black voters without explicitly violating the 15th Amendment. He highlights how states like Mississippi drastically reduced Black voter registration by embedding these discriminatory practices into their constitutions. For instance, Louisiana saw a decline from 102,000 registered Black voters in 1890 to merely 3,000 by 1905. Sheehan emphasizes, “They are deliberately trying to block access from the polls to black men” (24:43).

6. Supreme Court's Role in Entrenching Segregation (32:13 - 34:34) The episode further examines how Supreme Court decisions, particularly Plessy v. Ferguson, reinforced and legitimized segregation. Sheehan discusses the narrow interpretation of the 14th Amendment by the Court, which limited federal protection to actions by state authorities, thereby excluding private acts of racism from constitutional scrutiny. The dissent by Justice John Marshall Harlan, who argued for a "colorblind Constitution," is noted as a foundational argument that would later influence the Brown v. Board of Education decision.

7. Economic and Social Infrastructure of Jim Crow (35:56 - 39:17) Sheehan outlines the multifaceted approach of Jim Crow, combining legal segregation with economic suppression. Practices like redlining prevented Black Americans from accessing home loans and business opportunities, while social segregation laws forced businesses to maintain separate facilities—often at significant financial and operational costs. Sheehan remarks, “Jim Crow is in a way, the most invasive state possible because it is micromanaging every aspect of southern life” (37:45).

Additionally, the pervasive threat of lynching served as both a tool of terror and a public spectacle to maintain racial hierarchies. Sheehan notes the failure of federal anti-lynching legislation due to Southern opposition, leaving Black Americans vulnerable to unchecked violence.

8. The Gradual Erosion of Reconstruction Efforts (40:04 - 40:35) As the episode wraps up, Sheehan reflects on the slow and insidious nature of Jim Crow’s establishment, describing it as "death by a thousand cuts." Unlike dramatic uprisings, the dismantling of Black rights occurred incrementally through legal and social pressures, making it difficult to reverse or resist effectively.

Key Takeaways

• Reconstruction's Promise and Demise: The era of Reconstruction presented a brief window of progress for Black Americans, which was systematically undermined by white conservative forces.
• Legal Frameworks for Segregation: The Supreme Court's decisions, particularly Plessy v. Ferguson, provided the necessary legal backing for widespread segregation.
• Economic and Social Control: Beyond laws, economic practices like redlining and enforced social segregation entrenched racial inequalities.
• Incremental Suppression: The transition to Jim Crow was marked by gradual, legally sanctioned measures rather than sudden upheavals, making resistance and reversal challenging.

Notable Quotes

• “Jim Crow does not flow out of the Civil War. Jim Crow is not even necessarily a response to Reconstruction so much as it is a response to the successes, meager though they are, of Black Americans, as a result of Reconstruction.” – Aaron Sheehan (14:04)
• “Segregation was legally enforced first in settings like railroads, which then expanded into broader societal segregation.” – Aaron Sheehan (20:32)
• “The Supreme Court throws up its hands and says laws can't change attitudes... that law sort of follows from that.” – Aaron Sheehan (34:07)
• “Jim Crow is in a way, the most invasive state possible because it is micromanaging every aspect of southern life.” – Aaron Sheehan (37:45)

Conclusion and Future Episodes Dan Snow concludes the episode by acknowledging the intricate and prolonged struggle against Jim Crow, noting its profound and lasting impact on American society. He hints at upcoming episodes that will continue to explore the Civil Rights Movement and the eventual dismantling of Jim Crow laws, promising listeners a comprehensive understanding of this critical period in history.

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For those interested in exploring more about the Jim Crow era and its ramifications, this episode provides a detailed and scholarly examination, enriched by expert insights from Aaron Sheehan. Stay tuned to Dan Snow's History Hit for further episodes that continue to illuminate the pivotal moments that have shaped our present.

Transcript

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Oh oh oh.

[Dan Snow]

O'REILLY AUTO PARTS hi everybody. Welcome to Dan Snow's history hit in 1939, a paper in Alabama wrote this newspaper believes in white supremacy, and it believes that the poll tax is one of the essentials for the preservation of white supremacy. Eleven Southern states in the USA required citizens to pay a poll tax before they could vote. They might be one or two dollars a year, but citizens could still get the right to vote. They could still get on the electoral roll if their grandfathers had been voters. This was all a clever way of stripping the vote from Black Americans. In 1877, Georgia implemented a poll tax that saw black voter turnout go down by 50%. And it was just one of the tools by which segregation was enforced in the Southern states at the end of the 19th and through to the early 20th centuries. There were also literacy tests in which prospective voters would be examined on their literacy. The voting clerks, who were pretty much always white, could pass or fail a person at their discretion, and they usually did so based on race. And if those clerks came across white people who were functionally literate, well, don't forget they could claim the vote by that grandfather clause, former slaves or the sons of slaves could not, of course, invoke that clause because their enslaved forebears had obviously not had the right to vote. This was all part of a system known as Jim Crow. The beginning of Jim Crow stretched back to the 1830s, when a struggling white actor, Thomas Dartmouth Rice, put on blackface and would perform an exaggerated, highly stereotypical black character. But by the middle of the 19th century, Jim Crow was just a collective racial slur for African Americans. And by the end of the century, it was used to describe the set of laws and customs and behaviors that oppressed black Americans in the South. African Americans were denied the right to vote. To access education, they had to use different bathroom facilities. They had to swear on different Bibles in courthouses. They had to use different parks and libraries and transportation. Marriages between white and black Americans were made illegal. And this, of course, all springs from the aftermath of the Civil War. A Civil war during which President Lincoln had emancipated enslaved people in the South. A Civil War which had been followed by amendments to the U.S. constitution, the 13th, 14th and 15th, which was supposed to abolish slavery to establish equal protection for all citizens and establish access to the vote. How did Jim Crow come into being? How did those Southern states build a de facto and then a de jure apartheid state? To help me answer these questions, I've got Aaron Sheehan, Dean. He is the Frederick C. Frey professor of Southern Studies at Louisiana State University. He's the chairman of the History department. He specializes in the Civil War and Reconstruction and the history, obviously, of the American South. He's a fantastic guest and he's going to talk me through it. This topic was a listener request from Steve Ring. So thank you very much, Steve, for reaching out. We'll be following this one up with an episode on Jim crow in the 20th century and the emergence of the Civil rights movement that brought it to an end. But for now, this is a story of democratic backsliding and the birth of Jim crow.

[Unknown]

T minus 10.

[Aaron Sheehan]

Atomic bombs dropped on Hiroshima.

[Ryan Reynolds]

God save the King.

[Aaron Sheehan]

No black white unity till there is first and black unity never to go to war with one another again.

[Unknown]

And liftoff. And the shuttle has cleared the tower.

[Dan Snow]

Aaron, thank you very much for coming on the podcast.

[Aaron Sheehan]

My pleasure. Thanks for having me.

[Dan Snow]

I guess if we're gonna talk about Jim Crow, I know it's a huge story, but just set the scene about the demographics, the racial and social mix of the Southern states up to and including the Civil War. What does it look like in those southern states.

[Aaron Sheehan]

So the overwhelming number of black people in the United States live in the south. And that lasts all the way until really the end of the 19th century. So at the time of the Civil War in 1860, there are 9 million Southerners. Four million of those are black southerners. So nearly half the population, 4 million, enslaved. Actually, there are another probably 4 or 500,000 free people of color living in the antebellum South. The Northern population is 22 million, so more than double the whole population of the South. Very few black people in the northern states except in cities like Boston and Philadelphia and New York.

[Dan Snow]

Okay, so we got all of these people of color in the South. The Civil War happens. Everyone has heard about this but Abraham Lincoln. All these people of color now are free. You. And there's a period called Reconstruction. How does this period of Reconstruction, where there's an attempt to put that icing on the judicial cake, you know, on the legal cake, which is turn all of these people into equal citizens of the American republic, how does that Reconstruction period and this Jim Crow period, how do they interact with each other, help me understand that?

[Aaron Sheehan]

So it's probably too bold to claim that all northerners believe that African American, southern, black southerners should become full citizens. But certainly you're right. The 13th Amendment and slavery, the 14th Amendment establishes equal citizenship. And so there is an attempt in the south to build a biracial democracy. And this is really the first time that southern states have ever had anything like that or tried it. And so the experiment runs typically, we date this for 12 years or so and from 1865 until 1877, though in many places it actually ends earlier than that. And it's important to think of Reconstruction really as a period in which there is great possibility and there are meaningful measures, non political as well as political ones, in terms of the progress that black southerners make in terms of land ownership and access to education and access to the courts and the ability to marry and protect their children. All those things do happen. And yet by the end, what we see, that is by 1875, 77, certainly is the resurgence of what people called at the time home rule, meaning white conservatives in charge of southern states. That's by the middle of the 1870s. And that really curtails a lot of the serious experiments to bring black people into the body politic in particular.

[Dan Snow]

And those advances in the civil and political rights of black people, were they enforced, if you like, at the barrel of a gun? Did it depend on the Union army, the United States army being in those places and protecting those people.

[Aaron Sheehan]

The army does stay in the south, though it winnows dramatically. The army at the end is well over a million men. That is 1865, at the end of the Civil War. And it winnows dramatically to really a skeleton crew. What's important is federal law. And so most importantly, it is the 14th amendment. And then in 1866, there's a civil Rights act passed, the first one, creating a category of rights protected at the federal level, not at the state level. And this is part of the challenge, particularly probably for UK listeners or European listeners who are used to a much more unified, centralized system, that the American system of federalism, in which the state and federal government share authority, means that historically, the federal government has not played a big role in the kind of everyday maintenance of the rights that we think of as central to citizenship. Owning property, being able to move freely, attending an educational institution. These sorts of rights were solely dependent on the states. So the first effort at creating a legal structure for emancipation in Southern states is what are called the Black codes, passed in 1865. And these really only protect the right of black people to marry. And out of that, you get some degree of protection over your children as legally yours. The right to sue and be sued in court, which may not seem like a great asset, but in fact is essential to having loans or to doing any kind of business, and the right to own property. And that's the kind of sum total the federal government then works to kind of build and expand these. And so there is a huge tug of war as well between the federal and state governments over what that is, how these will be created. So I wouldn't say necessarily at the barrel of a gun. There are Freedmen's Bureau agents who are in the south, but 900 across a space larger than continental Europe. So it's not a very big footprint, I would argue.

[Dan Snow]

Wow. Okay. And in this. Well, throughout this bit of Reconstruction, there are attempts to derail this sort of things going on on the ground to try and exclude black people from political, economic, and social life.

[Aaron Sheehan]

Yes, and those happen immediately. The Ku Klux Klan is organized in 1866 as an attempt to forestall exactly what you just described. The entry of black people into political and social and economic life. And. And it's the reluctance of white Southerners to acknowledge the fact of emancipation and any willingness to endorse a vision of a biracial democracy that really catalyzes public opinion in the North. Most of the Republicans who are occupying the Congress who are taking seats up in Congress are really moderates and they envision a fast and inexpensive reconstruction. But the kind of truculence and the anger of white southerners eventually will push them to a much more radical position so that they pass in 1867, what are called the Reconstruction Acts. And these actually temporarily dissolve state boundaries so that we end up with five reconstruction districts in the south, which encompass the 10 states that are reconstructed. Tennessee, for obscure reasons, sort of skips Reconstruction. So there are 10 states, temporarily, those state boundaries dissolve. There are military districts headed by military governors who are almost always union generals. Those under the terms of the Reconstruction acts, those states are required to rewrite their constitutions to provide black manhood suffrage, to provide equality under the law. So the threat there again is not military, but it is that southerners will not have representation in the federal Congress until they change their state law. And that's a pretty serious incentive because it denies them any access to appropriations and to kind of helping shape policy for the post war United States. So there is great pressure to basically do what the Reconstruction acts compel, and those acts then change and provide a framework for greater inclusion. So what we see are black people mobilizing politically, being a part of the Republican party and helping in some places, Louisiana, South Carolina, actually rewrite the law. It's important to note that there are very few, at the end of the day, very few black Republicans who serve in Congress, I think 14, over the full dozen years. But at the state and local level, there are a lot of black men now moving into positions that would have been unimaginable in the pre war South. Tax assessor, local judges, things like that.

[Dan Snow]

But are they facing threats to their life and well being?

[Aaron Sheehan]

Certainly increasingly after 1867 they are. So the Klan and then what are called militias or rifle clubs in some places in Louisiana we get a group called the Knights of the white Camellia. And these are all basically terrorist groups that are using violence. And it's violence directed explicitly at the leaders of the black community. These might be political figures, they might be business leaders, they might be ministers or teachers. And the violence is personal. It usually happens at night where what are called night riders will come to a home, drag someone out, beat them, maybe set them on fire, maybe just murder them, set fire to the house. And the violence is intended to drive those people either out of the community or into a position where they're not asserting their claims to full civic life.

[Dan Snow]

So things are bad enough during Reconstruction, as we might say, but then Reconstruction comes To an end, famously the great Compromise, the devil's bargain of 1876 or 1877, when, after the presidential election, the Republican Rutherford B. Hayes narrowly wins. But he's allowed to. He's really kind of allowed to be present, if you like, by the Democrats in return for him promising to end that Reconstruction period. So what happens next is this when we get the expression Jim Crow.

[Aaron Sheehan]

So, I mean, Jim Crow as a phrase actually goes back even earlier to the 1840s. It's coined by a white musician, Thomas Rice, out of a song that he claims to hear a black man saying. So the term itself has been sort of floating. Jim Crow as a set of laws restricting the rights of black people within the South. Access to education, access to businesses. That really begins in the 1880s, the middle of the 1880s and even beyond. In some places, disfranchisement as. As an effort to restrict and prevent black men from being able to vote only happens beginning in 1890 in Mississippi and really in 1900-1903 in the other southern states. And I think really what's important is to recognize that these are not inevitable processes. The Jim Crow does not flow out of the Civil War. Jim Crow is not even necessarily a response to Reconstruction so much as it is a response to the successes, meager though they are, of black Americans, as a result of Reconstruction. So the first place we see Jim Crow statutes is actually in railroads. And we could talk in more detail about this, but this is because there are black travelers and businessmen who were successful enough to buy railroad tickets in the first class car and present this new dilemma in a kind of modern space that is the railroads. And that wouldn't have happened if there hadn't been a reconstruction that enabled black people to begin owning land, to begin owning their own businesses, and to basically position themselves as part of the southern social order. Wow.

[Dan Snow]

Okay. Well, tell me about these railroad regulations, these new rules.

[Aaron Sheehan]

So the railroads are the new technology that is the main both economic driver of development in the post war United States, as well as the conveyance that most people start wanting to use more commonly. I mean, they begin in the 1830s, but after the Civil War, there's huge efforts, and most railroads have by this point figured out they can charge two classes. There's a first class car which is kind of luxuriously appointed. It almost looks like someone's living room. It'll have fabric upholstery on chairs. It will have curtains on the windows. It's clean. And that car is at the end. And that's because all the other cars are rough wooden benches and wooden floors. They're behind the engine. So all the smoke is kind of pouring into these cars. And those cars tend to fill with people who can barely afford to get on the railroad, which means there are a lot of men, there's a lot of drinking, there's gambling, there's a floor covered in sort of tobacco juice, knife fights, kind of the whole thing. And so if you can at all avoid it, you buy a ticket on the first class car and you, you don't have to face any of that. And the problem in the 1880s is that there are black men who begin buying tickets on the first class cars. And so they are now riding in this sort of refined, exclusive, almost private space. It's obviously a public conveyance, but on the other hand, the cultural feeling of it is very intimate. And there are great concerns, particularly about the interactions that are happening in these spaces between black men and white women, particularly maybe younger women who are being, you know, sent to go visit an aunt or a grandma. And they're sort of unescorted and they are in this kind of private space. So the response from white travelers is often to demand that the black passengers be thrown out of the first class cars. And often they are physically ejected because they refuse because they have a first class ticket. And predictably, these men file lawsuits. And with a surprising degree of adherence to the law, southern courts say very plainly to the railroad, if you sell a ticket to the first class car, the person has a right to sit there. So they find damages on behalf of, of the victim here. And they, the railroad, and often the people who eject them are forced to pay the black person who is ejected compensation. And it's this that then compels active state intervention in many cases to try to resolve these problems. Because railroads are faced with the choice of figuring out basically who's a white customer, who's a black customer, should they be thrown off? Are we going to face a lawsuit as a result of this action?

[Dan Snow]

You listen to Dan Snow's history. Don't go anywhere. There's more to come.

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[Dan Snow]

Fascinating stuff. And quite quickly, is it the success or the enacting of these laws that then encourage elsewhere? Do you start to get this set of what become known as the Jim Crow laws?

[Aaron Sheehan]

It is so that what happens is state legislatures start requiring railroads to have two first class cars. That's their solution. That is we will separate the races in this refined space in sort of steerage or coach where you know, most of us fly today, everybody's all in there together. But the first class cars, they're actually requiring an extra investment by the railroad companies which are often reluctant because the first class cars are of course more expensive to build. They sell fewer tickets on them because there's less physical space. The whole idea is you have more privacy. And so that's the first time that state legislatures are actually requiring businesses to organize the way they interact with the public by race. And then out of this starts to come the separation of business facilities and public facilities had to some degree but already been separate things like cemeteries and hospitals. But that's then put into law. So de jure segregation.

[Dan Snow]

How interesting that it's this new technology. These New spaces that we humans created since the Industrial Revolution that actually have. We think of these inventions as deeply progressive, but they were, in this case, enormously regressive.

[Aaron Sheehan]

There's a kind of widespread misassumption, I think, among students and other people, that modernity brings sort of enlightenment and progressive thought. The historian Edward Ayers has a great passage in one of his books from a memoir of a white Southerner who was at a county fair and put on a pair of headphones like we're wearing, and listened to a record for the first time. This was in the nineteen teens, probably the recording industry, sort of just beginning. And at first he's not. Can't figure out what he's listening to because he's hearing the shouts of people yelling and he's hearing voices. And then he realizes because he hears shouts of string him up. That what he's listening to is a recording made of a lynching, and he sort of pales in color. And the proprietor who's trying to sell this new technology pulls the earphones off, and there's some passerby that says, what's wrong? And the provider says, oh, you know, young boys at fairs. He's probably got a sick stomach from lemonade. But the idea that this new technology that's going to revolutionize communication and open the world up is in fact used for this most regressive political end reminds us that these technologies aren't benign or don't necessarily sort of yield enlightenment.

[Dan Snow]

Well, for some reason, I'm thinking to one Al Gore, who said in after losing the election, at least the Internet's coming, and it will be easier for everyone to get accurate information, and. And we'll be able to deal with the sort of misinformed electorate, you would.

[Aaron Sheehan]

Only have said that in 2001 or 2000, that an open channel of communication is going to lead to universal human betterment. And unfortunately, it has not so far.

[Dan Snow]

And yet it was all there in the 1880s if people had chosen to look. Tell me more, then, about how these laws spread.

[Aaron Sheehan]

So the states are explicitly copying each other. Famously, Mississippi is the first state to impose full disfranchisement of black men as voters. So in 1890, they revised their state constitution to impose poll taxes to require a literacy or understanding test for voter registration. And in doing this, they are deliberately trying to block access from the polls to black men. They will add a grandfather clause, which is, even if you can't pass the literacy test, even if you can't pay the poll tax, if your grandfather was Registered to vote. You are allowed to vote. And the grandfather is important because they have to go back before 1867, when the reconstruction Acts compelled the rewriting of state constitutions. And then other states watch this, and they watch the federal reaction, which is generally to allow this and begin revising. So a whole host of Southern states in 1900, 1901, 1902, make the very same revisions to their state constitutions, effectively purging black men from the polls. In Louisiana, in 1890, there was something like 102,000 registered black voters, and in 1905, there are something like 3,000. So it purges literally 96% of the voters of the black voters off the rolls. And there's a very deliberate mimicry here.

[Dan Snow]

And those 3,000 had passed. They had the money for the politics. They managed to pass the literacy and the voter the questionnaire. They must have been constitutional scholars, because I imagine the questions were pretty hard when men of color came and sat the exam.

[Aaron Sheehan]

Well, arcane. And then, of course, deliberately sort of not applied to white people who are testing at the same time. And so it really depends on whether. Because there are Republican office holders who continue to occupy seats, particularly in the Upper south, places like Tennessee and Virginia and Kentucky, but even in some parts of the Lower South. And so if you got a kind of friendly registrar, that is a Republican registrar who's committed to protecting black voters, you might have a parish, as we call them in Louisiana, or counties and other places where there is still black voting, but at a statewide level, they really cease to have any impact, and the primary becomes the only method of voting effectively.

[Dan Snow]

It's clever, isn't it? Because are they quite cautious not to bump up against constitutional amendments or federal law, you know, by introducing things like this literacy test or this. Remind me what it's called, the voter.

[Aaron Sheehan]

Or a poll tax or an understanding clause. Yeah.

[Dan Snow]

By doing these things, you're able, presumably, to skate around and mask the fact that it's just a nakedly racist move.

[Aaron Sheehan]

You are. I mean, so part of this is because the 15th Amendment, which was passed during Reconstruction and incorporated in the Constitution, explained that the right to vote could not be a bridge based on color, creed, or previous condition of servitude. So the 15th Amendment is actually silent on the question of whether a state could add additional measures to kind of narrow who's eligible for the vote. And the end of Reconstruction comes partly in 1877, because there are a sequence of rulings that really narrow the scope of interpretation of the 14th and eventually the 15th Amendment. In the post war years. And there were people at the time, I should say, that wanted a 15th amendment that just categorically proclaimed the right to vote unabridged. And careful readers of that amendment recognize that they have the constitutional right with a friendly court, of being willing to create these new tests, as they call it, but as you're saying, sort of deliberately skirt the federal law in a way that restricts the right to vote solely on account of race, even though that's not what they are saying.

[Dan Snow]

I see. And in the 1870s, there was a court that was broadly friendly to African American voting. And later in that century, do you find courts that are more willing to abridge that right?

[Aaron Sheehan]

Yeah. I mean, Even by the 1870s, there's already a conservative Supreme Court. It's not staffed with a majority of southerners, but there's really One important case, 1877, called Cruikshank, and there's another sequence called Slaughterhouse, which happens. Both of these are Louisiana based cases, but in both cases, the Supreme Court narrows its interpretation of the 14th Amendment, which is supposed to be protecting the due process and the equal access to the law for all citizens, full stop. And instead they read that amendment as only protecting people from infringement by a state authority. So in the case of the Cruikshank decision, which responded to the most violent massacre of black citizens during Reconstruction, which happened in Colfax, Louisiana In 1873, nearly 100 black people were killed at this massacre. And the argument eventually turned out the people who were initially convicted were released and never punished. And that's because they weren't acting as a part of the state. So it wasn't the state militia that killed them, it was a white Mob. And the 14th Amendment, under the reading of the Supreme Court in Crookshank, said that isn't what the 14th Amendment does. It only protects you from actions by the state. So the informal organization in this case of a mob, that violence has to be prosecuted at state level. And by then, the state courts were unwilling to take a case like that. No grand jury would ever convict, never mind even indict someone for that kind of action. And so the result is people go unpunished. And that's the beginning of what we see as a kind of conservative judiciary narrowing the scope of the Reconstruction laws in a way that leaves African Americans unprotected by the federal government for generations, really.

[Dan Snow]

Is Dan Snow's history. There's more on this topic coming up.

[Unknown]

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[Dan Snow]

I'm very struck by listening to this, how it sounds like there wasn't one key moment. Often our basic perception perhaps of how history works, we look around at revolutions and uprisings, is that the government tries to rescind a constitutional provision or pass a law and the public just go out on the streets, go, this is it. This is the battle for our future. What strikes me so interesting about this period in the south is it's just death by a thousand cuts over really a generation or two.

[Aaron Sheehan]

It is.

[Dan Snow]

There's no point at which black Southerners could just go right, this is it. This is the moment. Because after this we're never going to get these rights back.

[Aaron Sheehan]

It makes a more dramatic story if there's that single moment. And this is partly why so much in a lot of the literature, the historical literature has turned on, say, the outcome of the Civil War and the moment of Appomattox. In recent years we've had a lot of historians kind of reinterrogating what it means for a war to end and how sharp a break that presents between the pre war, the wartime and the post war period. And there is more continuity in many of these cases, as we imagine. And you're certainly right that the process of both expanding rights and then contracting those rights happened over time. It happens largely in Courts, often in federal courts that are not accessible to the public. So you have to be kind of reading very carefully and you have to be able to chart trend lines over a long time, these escalate. And one of the real inflection points is the Plessy v. Ferguson case in 1896, which the Supreme Court basically finds segregation constitutional. That comes in 1896. And this is partly why in 1900, in the beginning of the 20th century, we see Southern states begin to really broaden the legal segregation framework that they had sort of hesitantly begun in the 1890s, because the Supreme Court seems to have offered tacit approval for any form of segregation by race.

[Dan Snow]

Let's talk about Plassey Ferguson. How did they come up with that interpretation?

[Aaron Sheehan]

So, I mean, the case is a fascinating one. Plessy himself, Homer Plessy, is a very well established mixed race member of the New Orleans community. He's 7, 8 white. So phenotypically, that is to say, his physical appearance would have looked certainly to modern readers, my students look at him and think that he looks white. It's a test case, as many of these are, to determine whether the actions in Louisiana are the actions of ejecting black men from streetcars are legal. And the Supreme Court's opinion is that the federal law does not protect this level of kind of social interaction, which is how they view it. In a way, the Supreme Court throws up its hands and says laws can't change attitudes, that the segregation that has evolved, that's generated by a natural condition. And this is an important way of kind of justifying laws that are in fact quite radical as claiming that they are natural and that in any event the law would never work to undo prejudice. And so these are simply the way people behave. And that law sort of follows from that. That is state ways can't change folk ways is the sort of shorthand argument made here. And it's only in the dissent, famously by the son of a slaveholder, somebody who grew up in a slave holding household. John Marshall Harlan of Tennessee, he cast the dissenting vote in Plessy and he says, the United States has a colorblind Constitution and this is a gross violation of that obligation under the federal law to protect people regardless of their color, to not recognize differences. Harlan's dissent is an important one for kind of anchoring a 20th century interpretation that will eventually throw out Plessy. But in the meantime, Plessy offered carte blanche to those Southern states to begin more actively creating segregation regimes.

[Dan Snow]

It's such an interesting thing to hear U.S. supreme Court justices say, given that the whole idea of the rule of law, the whole American experiment, is based on this idea of writing a set of laws down, writing a constitutional framework down, that may run contrary to what people instinctively feel they want to do and think they want to do. And that feels like the foundation of the Republican experiments. It's a strange thing to say. Well, laws can't really change people's attitudes.

[Aaron Sheehan]

Yes. And as you point out, I mean, it's certainly in the American case. And that's a really interesting point that I don't think many historians actually make about the kind of centrality, given that the people who create the United States are coming from different places. They're sort of inventing the nation on the fly. And the only way to invent it is with this proclamation of we're now an independent nation that nobody's ever done before. There's never been a declaration that is the United States doesn't grow organically out of the way, say France or Spain, we would regard as growing organically out of a language and a culture. America is invented, and you do this through the law itself. And the Supreme Court in the Brown case, when they undo Plessy, says explicitly we are doing this. That state waste can change folkways. And of course, the government's running assumption since government began, however many thousand years ago, is that rules can shape behavior. That if we tax certain things, it will encourage certain kinds of behavior. That if we reward certain things with lower taxes, people are more likely to do it. I mean, that's central. And this is why fights over appropriations in the tax code are really the only policy battles that matter, because that's where you get actual responses from people.

[Dan Snow]

So we got Plessy versus Ferguson. These Southern states have got now not just de facto autonomy to organize their societies in these fashion, but sort of legal cover they do.

[Aaron Sheehan]

I mean, there are many components to segregation, and the legal structure is one of those components. There is a great deal of economic pressure that is applied selectively, explicitly in the case of something like redlining, where black people aren't given loans to start businesses or to purchase homes in certain areas, but also a kind of silent kind of economic oppression in which civil rights activists or leaders in the community can be denied jobs or denied insurance or denied housing. So it's a very effective, invisible way of suppressing people's rights to claim, more broadly claim their rights. There is the political disfranchisement that prevents black men from being able to either vote or Participate as elected officers in the government. There is, of course, the social segregation, the separation of races, and the inability then of people to actually come to know one another. And then there's the violence of lynching. You had mentioned that earlier. There was plenty of violence during reconstruction generated by the klan, Thousands of people murdered. That was very targeted political violence. The violence of lynching in the 1880s and then the high years, the worst years for lynching are really the kind of mid-1890s to the maybe 1915 or so. Those are years in which lynching becomes a public spectacle. And that threat of horrific, grotesque public violence is used to kind of try to bound the system as well. And also sanctioned by state laws which refuse to prosecute people for committing lynchings. And the federal government, Congress is never able to pass an anti lynching statute because southern senators and congressmen have such a deep hold on congress that they block that measure whenever it comes up for a vote. And that goes on for decades.

[Dan Snow]

And is the system called jim crow? Is it referred to as jim crow? It is.

[Aaron Sheehan]

That becomes a kind of colloquial shorthand to characterize all of these forms of segregation and exclusion that come to dominate southern life. Because in the United States, there is a still a quite tenacious myth of a laissez faire past that existed at some point where the government played little role. But in fact, jim crow is in a way, the most invasive state possible because it is micromanaging every aspect of southern life. And it's compelling businesses at great expense, to duplicate a lot of what they have. So restaurants have to have separate dining rooms for white and black customers, separate silverware. They're supposed to have separate washing stations in the rear, because you wouldn't want to mix those courtrooms, have a white bible and a black bible to swear people in on the level of fastidiousness that develops. And this is all quite novel, and that's another important point to make, is that historically, white people and black people had lived very dense and intimate lives. That's how you end up with 500,000 mixed race people. But even slavery, in its most classic form, sort of brings whites and blacks into intimate relationship. And it takes a huge amount of effort to untangle them and to kind of separate and segregate them. And these states invest very little in any other measure. Right. They don't build schools. They're not actively promoting industrial development the way that northern and western states are. So they are quite parsimonious in terms of spending. And yet in other areas, they compel and require a huge amount of spending by private forces.

[Dan Snow]

Sounds like big government to me, Aaron. I mean, I thought that's what we didn't like.

[Aaron Sheehan]

Well, that's sort of the story that we tell ourselves. But the segregationists understood the power of the state, and I mean, they understood both the power of the individual states and also the power of the federal state, which is partly why they worked so hard to ensure that Congress was not going to interfere in this, that the Supreme Court had basically kind of authorized this. And then they put state governments to enormous interventionist purpose in people's lives in a way that we haven't really sort of reconciled on this question of big government.

[Dan Snow]

That's fascinating stuff. Thank you, Aaron, for coming on. Thanks so much.

[Aaron Sheehan]

Thank you. Really enjoyed the conversation.

[Unknown]

Your old or broken phone can let you down when you need it most.

[Aaron Sheehan]

Perfect.

[Unknown]

But at Verizon, trade in any old phone from our top brands and get the most for it. Up to 2,000 in value for an amazing new iPhone 16 Pro with Apple Intelligence and a new line on MyPlan and iPad and Apple Watch Series 10. That's like a three for one. And you can get it on any plan. At Verizon, trade in your old phone for a brand new iPhone 16 Pro, iPad and Apple Watch. The other guys won't give you that. Visit verizon.com today. Additional terms apply Service plan required for Apple Watch and iPad up to $2,000 value based on iPhone, iPad and Apple Watch.

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