The original U.S. Constitution of 1787 was not created for Black people
The original U.S. Constitution of 1787 was not created for Black people, as it was drafted by an all-white, male delegation that purposefully excluded Black individuals from the rights, privileges, and protections of citizenship. Instead, the original framework protected the institution of slavery and treated Black people as a subservient class to benefit white landowners and preserve a fragile political union. However, through subsequent amendments, the Constitution was radically reshaped to legally include and protect Black Americans. [1, 2, 3, 4, 5, 6]
- The Three-Fifths Clause (Article I, Section 2): It dictated that enslaved people would count as three-fifths of a person solely for calculating a state's population. This granted disproportionate political power and congressional representation to Southern white enslavers without granting any rights to the enslaved people themselves. [1, 2, 3, 4, 5]
- The Slave Trade Clause (Article I, Section 9): This prohibited Congress from banning the importation of enslaved African people until at least 1808. [1, 2]
- The Fugitive Slave Clause (Article IV, Section 2): It required that enslaved people who escaped to free states must be returned to their enslavers, overriding local free-state laws. [1, 2]
- The 13th Amendment (1865): Formally abolished slavery and involuntary servitude across the country, except as punishment for a crime. [1, 2]
- The 14th Amendment (1868): Directly overturned the Dred Scott decision by granting birthright citizenship to all persons born in the U.S., guaranteeing "equal protection under the laws" and due process. [1, 2, 3]
- The 15th Amendment (1870): Prohibited the government from denying a citizen the right to vote based on race, color, or previous condition of servitude. [1, 2]
Courtesy U.S. National Archives (1667751)
Often misinterpreted to mean that African Americans as individuals are considered three-fifths of a person or that they are three-fifths of a citizen of the U.S., the three-fifths clause (Article I, Section 2, of the U.S. Constitution of 1787) in fact declared that for purposes of representation in Congress, enslaved blacks in a state would be counted as three-fifths of the number of white inhabitants of that state.
The three-fifths clause was part of a series of compromises enacted by the Constitutional Convention of 1787. The most notable other clauses prohibited slavery in the Northwest Territories and ended U.S. participation in the international slave trade in 1807. These compromises reflected Virginia Constitutional Convention delegate (and future U.S. President) James Madison’s observation that “…the States were divided into different interests not by their…size…but principally from their having or not having slaves.”
When Constitutional Convention delegate Roger Sherman of Connecticut proposed that congressional representation be based on the total number of inhabitants of a state, delegate Charles Pinckney of South Carolina agreed saying “blacks ought to stand on an equality with whites….” Pinckney’s statement was disingenuous since at the time he knew most blacks were enslaved in his state and none, slave or free, could vote or were considered equals of white South Carolinians. Other delegates including most notably Gouverneur Morris of Pennsylvania argued that he could not support equal representation because he “could never agree to give such encouragement to the slave trade…by allowing them [Southern states] a representation for their negroes.”
With the convention seemingly at an impasse Charles Pinckney proposed a compromise: “Three-fifths of the number of slaves in any particular state would be added to the total number of free white persons, including bond servants, but not Indians, to the estimated number of congressmen each state would send to the House of Representatives.” The Pinckney compromise was not completely original. This ratio had already been established by the Congress which adopted the Articles of Confederation in 1781 as the basis for national taxation.
Although the three-fifths compromise and others regarding slavery helped hold this new fragile union of states together, many on both sides of the issue were opposed. James Madison and Edmund Randolph of Virginia used the phrase “Quotas of contribution” to argue that slaves should be fully counted, one for one, and opposed the compromise.
Northern opponents correctly pointed out that slaveholding states had more representatives than if only the free white population was counted. By 1793, slaveholding states had 47 congressmen but would have had only 33 if not for the compromise. During the entire period before the Civil War slaveholding states had disproportionate influence on the Presidency, the Speakership of the House of Representatives, and the U.S. Supreme Court because of the compromise. By the 1830s abolitionists such as William Lloyd Garrison of Massachusetts used the clause in their argument that the Federal government was dominated by slaveholders.
The three-fifths clause remained in force until the post-Civil War 13th Amendment freed all enslaved people in the United States, the 14th amendment gave them full citizenship, and the 15th Amendment granted black men the right to vote.
Who is included in “We the People”? Whose rights does the law protect?
The 14th Amendment to the Constitution is one of the nation’s most important laws relating to citizenship and civil rights. Ratified in 1868, three years after the abolishment of slavery, the 14th Amendment served a revolutionary purpose — to define African Americans as equal citizens under the law. Although its promises have not always been upheld, the 14th Amendment has provided African Americans and other groups in society with a legal basis to challenge discrimination, demand equal rights and protections, and effect change.
Black people have been fighting for basic citizenship rights since the inception of the country.
Deconstructing the 14th Amendment
The 13th Amendment, ratified in December 1865, made slavery illegal throughout the United States. But it did not address other fundamental questions about the status of newly freed African Americans. Were they citizens? Did they have the same rights as other Americans? To resolve these issues, Congress passed the 14th Amendment, which contained key provisions on the definition of citizenship, the protection of civil rights, and the power of the federal government.
Birthright Citizenship
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
— 14th Amendment, Section 1
From the nation’s founding, African Americans regarded themselves as citizens. When the U.S. Constitution was ratified in 1788, it did not restrict citizenship based on race. However, it only counted enslaved people as 3/5ths of a person, rather than as full citizens, in state populations.
Dred Scott and Harriet Robinson Scott
Dred Scott and his wife, Harriet Robinson Scott, filed suits to claim their freedom while still enslaved, based on having lived in free territory. Dred Scott appealed his case to the United States Supreme Court, which denied his claim on the basis that he was not a citizen and had no right to sue in federal court. Delivering the opinion of the Supreme Court in the case of Dred Scott v. Sanford, 1857, Chief Justice Roger B. Taney wrote: "[slaves and their descendants] had for more than a century been regarded as beings of an inferior order … they had no rights which the white man was bound to respect."
The U.S. Supreme Court declared in the case of Dred Scott v. Sanford that Black people, whether free or enslaved, were not citizens, but “a separate class of persons.” This decision protected the institution of slavery, which defined enslaved people as property, and supported discriminatory laws that denied equal citizenship status to free Black people.
The citizenship clause of the 14th Amendment was specifically intended to repeal the Dred Scott decision. It established the principle of birthright citizenship, meaning a person born in the U.S. is automatically a citizen. This clause did not apply to Native Americans, however, who were not legally declared U.S. citizens until the Indian Citizenship Act of 1924 (pdf). Under the 14th Amendment, African Americans could now legally claim the same constitutional rights afforded to all American citizens.
Civil Rights, Due Process, and Equal Protection
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
— 14th Amendment, Section 1
Protesting Black Codes
After the abolishment of slavery in 1865, southern states passed laws known as Black Codes, which restricted the civil rights of newly freed African Americans and forced them to work for their former enslavers. African Americans organized conventions across the South to protest the Black Codes and petition Congress for equal rights.
We simply desire that we shall be recognized as men; that we have no obstructions placed in our way; that the same laws which govern white men shall direct colored men; that we have the right of trial by a jury of our peers; that schools be opened or established for our children; that we be permitted to acquire homesteads for ourselves and children; that we be dealt with as others, in equity and justice.
Read the transcript of the Petition of Colored Citizens of South Carolina for Equal Rights Before the Law, and the Elective Franchise, 1865:
To the Honorable Senate and House of Representatives in Congress assembled. We the undersigned colored citizens of South Carolina, do respectfully ask your Honorable Body, in consideration of our unquestioned loyalty, exhibited by us alike as bond or free;—as soldier or laborer;—in the Union lines under the protection of the government; or within the rebel lines under the domination of the rebellion; that in the exercise of your high authority, over the re-establishment of civil government in South Carolina, our equal rights before the law may be respected; — that in the formation and adoption of the fundamental law of the state, we may have an equal voice with all loyal citizens; and that your Honorable Body will not sanction any state Constitution, which does not secure the exercise of the right of the elective franchise to all loyal citizens, otherwise qualified in common course of American law, without distinction of Color — Without this political privilege we will have no security for our personal rights and no means to secure the blessings of education to our children.
The state needs our vote, to make the state loyal to the Union, and to bring its laws and administration into harmony with the present dearly bought policy of the country, and we respectfully suggest that had the constitution of South Carolina been heretofore, as we now ask that it shall be hereafter, this state would never have led one third of the United States into treason against the nation.
For this object, your petitioners will as in duty bound, ever pray &c.
The 14th Amendment revoked the Black Codes by declaring that states could not pass laws that denied citizens their constitutional rights and freedoms. No person could be deprived of life, liberty, or property without due process (fair treatment by the judicial system), and the law was to be equally applied to everyone. This represented a major shift in power between the states and the federal government. For the first time, civil rights were to be protected at the federal level, not left to the states.
Representation and Voting Rights
The 14th Amendment also included provisions relating to voting and representation in Congress. It amended the 3/5ths clause in the Constitution, stating that population counts would be based on the “whole number of persons” in a state—all people would be counted equally. It also protected the right to vote “for all male citizens age 21 or older,” though it would take another amendment to the Constitution (the 15th Amendment, ratified in 1870) to ban voting restrictions based on race. Women would not secure the right to vote until the ratification of the 19th Amendment in 1920.
Reconstruction and the 14th Amendment
Congress passed the 14th Amendment on June 13, 1866, and sent it to the states to be ratified. But changing the Constitution to fulfill the promise of equality for African Americans would not be an easy process. Slavery, which defined Black people as property, not as citizens, had shaped the United States since its founding. In order for the 14th Amendment to become the new law of the land, it would need more than a ratification—it would need Reconstruction.
White Resistance
Twenty-two states ratified the 14th Amendment within a year after it was passed, out of a total of 28 needed to make the amendment part of the U.S. Constitution. But most southern states, led by the same white men who had passed the Black Codes, refused to ratify an amendment that defined African Americans as equal citizens. Black men and women who attempted to exercise their rights and freedoms faced resistance, violence, and retaliation from their fellow white citizens.
On May 1, 1866, mobs of white civilians and police attacked the Black community in Memphis, Tennessee. The first major outbreak of racial violence after the Civil War, the Memphis Massacre lasted three days and resulted in the deaths of 46 African Americans. National outrage over the incident helped fuel support for passage of the 14th Amendment.
I was going home to my mother’s, and when I had got to Brown avenue and De Soto streets, I met two men, one was a policeman, I do not know who the other was; the policeman shot me in the head … After he shot me, he asked me if I was a soldier. I said no. He said it was a good thing I was not, and he then went along.
Taylor Hunt, age 16 Testimony from Memphis Riots and Massacres,” House of Representatives Report No. 101, 39th Cong., 1st Sess., 1866
Opposition to the 14th Amendment was not limited to the South. In northern and western states, the Democratic Party appealed to white voters who opposed the idea of equal rights for African Americans. Three states—Ohio, Oregon, and New Jersey—that initially ratified the 14th Amendment rescinded their ratifications in 1868 after Democrats gained control of those state legislatures.
Reconstruction Acts
In 1867, Congress passed the Reconstruction Acts, which placed former Confederate states under military rule until they ratified the 14th Amendment and established new constitutions guaranteeing equal rights and protections to African Americans. The Reconstruction Acts also granted Black men in southern states the right to vote and hold elected office. Once African Americans were able to participate in the political process, the 14th Amendment gained the final votes it needed in the South. On July 9, 1868, Louisiana and South Carolina voted to ratify the amendment, making it officially part of the U.S. Constitution.
Enforcement Acts
After the 14th Amendment was ratified in 1868, white southerners continued to violently oppose Black civil rights. In 1870 and 1871, Congress passed three laws known as the Enforcement Acts, which invoked the power of the federal government under the 14th Amendment to intervene when states failed to protect the rights of citizens.
The Enforcement Acts specifically targeted the Ku Klux Klan for conspiring to prevent Black men from voting. During federal grand jury investigations, hundreds of African Americans came forward to testify about being terrorized by the Klan. In South Carolina, this testimony led to the indictment of 220 Klansmen for civil rights violations, but only five were ultimately tried and convicted.
Civil Rights Act of 1875
To expand on the 14th Amendment’s promises of equal rights and protection under the law, civil rights advocates called for new federal legislation to outlaw racial discrimination in public places. In 1875, Congress passed the Civil Rights Act, which guaranteed all persons equal access to public accommodations, including theaters, hotels, and transportation, and allowed anyone denied services on account of race to seek restitution in federal court. Among those who helped secure the bill’s passage were Black members of Congress elected during Reconstruction, including Robert B. Elliott of South Carolina, who gave a famous speech in favor of the legislation.
[This bill] does not seek to confer new rights … but simply to prevent and forbid inequality and discrimination on account of race, color, or previous condition of servitude. … [It] will determine the civil status, not only of the Negro, but of any other class of citizens who may feel themselves discriminated against.
Rep. Robert Brown Elliott.
Collection of the Smithsonian National Museum of African American History and Culture, Stanley Turkel's Collection of Reconstruction Era Materials
[This bill] does not seek to confer new rights … but simply to prevent and forbid inequality and discrimination on account of race, color, or previous condition of servitude. … [It] will determine the civil status, not only of the Negro, but of any other class of citizens who may feel themselves discriminated against.
Rep. Robert B. Elliott Speech in favor of the Civil Rights Act, 1874
By 1875, when the Civil Rights Act was passed, the 14th Amendment was already under attack. Over the next two decades, the 14th Amendment’s power to protect the constitutional rights of African Americans would be undermined by legal challenges that reestablished the primacy of states’ rights, allowed racial segregation, and relegated Black people to second-class citizenship.
Limiting the 14th Amendment: Segregation and Unequal Protection
White supremacists opposed to Black equality and citizenship used violence, terror, and voter suppression to retake control of southern state governments. Efforts to combat southern racial violence lost momentum within the federal government and finally resulted in the withdrawal of federal troop protection of African Americans living in the South. Supreme Court rulings restricting and overturning 14th Amendment civil rights protections reinforced Southern efforts to restrict the rights of African Americans. Racial discrimination and segregation consequently characterized the day-to-day lives of African Americans.
Colfax Massacre and Cruikshank Decision
On April 13, 1873, white Democrats in Louisiana angry about their defeat in the election attacked Black Republicans gathered for a meeting at the Colfax Parish Courthouse in Louisiana. Approximately 150 African Americans were killed, forty of whom were executed after they surrendered.
In March 1876, the U.S. Supreme Court decision in United States v. Cruikshank overturned the convictions of the white men who attacked Black citizens in Colfax, Louisiana. The Court ruled that the 14th Amendment only applied to actions taken by the state, not to actions taken by individuals. As a consequence, none of the white attackers were punished for their role in the Colfax Massacre.
African Americans repeatedly challenged the emergence of segregation. They staged protests, brought claims to the courts, and produced publications highlighting and opposing the discrimination and violence they faced. They argued the passage of the 14th Amendment gave them the same civil rights and equal protection as any other citizens.
Ida B. Wells
In 1883, Ida B. Wells was working as a schoolteacher in Memphis, Tennessee, when a white conductor forced her off a train for refusing to move out of the first-class car. Citing her rights under the Civil Rights Act of 1875, Wells sued the railroad company for damages. The Circuit Court of Shelby County ruled in Wells’s favor, stating that she was “refused the first-class accommodations to which she was entitled under the law”; however, the Supreme Court of Tennessee later reversed the decision on appeal. Wells went on to become a prominent journalist and civil rights activist whose campaign against lynching brought worldwide attention to racial violence and injustice in the Jim Crow South.
Homer Plessy
In 1892 Homer Plessy of New Orleans, Louisiana, volunteered to test the legality of railroad car segregation in that state. He sat in a “whites only” car, refused to move to a segregated car, was arrested, and sued in court. The case eventually reached the U.S. Supreme Court, which ruled in 1896 that segregation was legal as long as the accommodations were “separate but equal.”
The 1896 Plessy v. Ferguson Supreme Court decision further reinforced the rise of segregation. The Court rendered this decision despite the reality that separate areas provided for African Americans rarely were equal. John Marshall Harlan, the only dissenting justice, argued against the decision: “The arbitrary separation of citizens, on the basis of race … is a badge of servitude wholly inconsistent with the civil freedom and the equality before the law established by the Constitution.”
Despite the refusal of the courts or politicians to support them, African Americans continued to challenge segregation and demand their equal rights under the Constitution. They pressed forward their fight in the belief that their efforts might eventually result in change.
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