American History Hit - Reconstruction Era: Terror in the South

Episode Date: August 17, 2026

Reconstruction promised freedom and political equality, but how quickly did that promise begin to unravel? Why did white Southern resistance become so violent, and why did Northern support for Reconstruction begin to fade? In this episode, we explore the rise of Jim Crow, the retreat of federal protection, and the political choices that transformed the South for generations.Our returning guest today is Bradley Rebeiro, Associate Professor of Law at BYU Law School. He is the author of ‘Until the Last Yoke is Broke: The Constitutional Vision of Frederick Douglass’, which is out on September 29th of this year.Edited by Aidan Lonergan. Produced by Tomos Delargy. Senior Producer was Freddy Chick.Sign up to History Hit for hundreds of hours of original documentaries, with a new release every week and ad-free podcasts. Sign up at https://www.historyhit.com/subscribe.  All music from Epidemic Sounds.American History Hit is a History Hit podcast. Hosted on Acast. See acast.com/privacy for more information.

Want to explore even more history? Sign up to History Hit, where you will discover history from around the world. From the American Revolution to prehistoric Scotland, there is plenty to discover. With your subscription, you'll unlock hundreds of hours of exclusive documentaries with a brand new release every week, exploring everything from the ancient world to World War II. Just visit historyhit.com slash subscribe to bring the past alive. It's November 1876. Across the South, reconstruction is in turmoil.

Armed white supremacist groups stalk polling places, intimidating and often murdering black citizens determined to exercise their hard one right to vote. More than a decade after the Civil War, the struggle over its outcome is still being fought in elections, across courtrooms, and in blood-soaked streets. Meanwhile, in the North, patients is wearing thin. Many Americans have grown weary of the cost, both political and financial,

of sustaining reconstruction. In Washington, D.C., the latest presidential election has ended in deadlock, with no clear victor, and the nation is teetering on the brink of crisis. Behind closed doors, Republican and Democratic leaders begin negotiating a settlement. The compromise they reach will go far in determining the fate of reconstruction, and the political and cultural future of the nation itself. I'm Don Wildman, and this is American History Hit. Thanks for listening. Our returning guest in this episode is Bradley Rubiro, Associate Professor of Law at BYU Law School. He is the author of Until the Last Yoke is Broke, the constitutional vision of Frederick Douglass, which releases on September 29th of this year. Bradley joined us last week to discuss

the advancements made for emancipated black people during reconstruction, what's known as the false dawn of freedom. Today's episode follows directly from that discussion. We talk about the culture of violence and mass terror that arose during reconstruction, as well as the legal struggles that reach all the way to the Supreme Court, all of it, planting the seeds of Jim Crow. Hello, Bradley. Thanks again for joining us on American History. I really appreciate you coming back. Yeah, thanks for having me again. So in the previous episode, we touched on the massive resistance efforts to implement Reconstruction faced in the South. I mean, that, in opposition to these very hopeful stories that we've told in that

previous episode, I want to understand, as we go through this, the next 10 years, basically, how this resistance was so born of violence? How was the gauntlet being laid in a culture that was just exploding? Well, to put it one way, what you first had when you had blacks suddenly having the right to vote, progressive constitutions, right? this is largely benefiting, frankly, recently freed men and poor whites. They're the greatest beneficiaries, right, I'd say, of a lot of these changes. You had small pockets of violence, right?

Small pockets of resistance, but they weren't really organized, right? In any sort of way, it's just sort of your, I don't want to say run in the middle, but it's hard to find another word for this, but just sort of your tit-for-tat stuff that you might see in local affairs. This starts to get displaced largely, though, by the Ku Klux Klan and the rise of the Ku Klux Klan. This is what changes the entire game, where you see violence on a massive scale, right? Not just individual pockets where there's a disagreement here or there, but suddenly you have organized, orchestrated violence. Yeah, I mean, it's fair to call it terrorism, right? Yeah,

yeah, that's right. It's racial terrorism. The whole point was to strike terror into the black population in order to keep them from voting and then eventually even get them to leave. We've done an episode on the The lack of punishment to those ex-Confederate leaders, those military men, and even the soldiers, if you wanted to go that far. In the spirit of reunifying the country, a lot of people had gone free and walked free of all of these responsibilities. Many of those are who coalesce and form these terrorist organizations, like the White League, the Red Shirts, most famously, as you say, Ku Klux Klan. They enact these campaigns of mass of violence against the black population. How much communication was there across the South in creating this network? So it depends on, you know, the historian. Some historians have argued that there was massive communication across the board, that it was very much an organized effort. I tend to think that like Eric Foner, he has a great book on reconstruction, and he made the argument that I find somewhat persuasive that there was sort of local organization, but nothing quite to the scale of, you know, you had a national head that.

literally orchestrated what every single locale did, but you didn't need that, I think, was the, is the real kicker here. Yeah. The idea is, no, you just need to affect local elections, right? You just need to make sure that you had a local group who could get together and make sure to terrorize black communities, especially around times of elections. Well, of course, you know, the fugitive law, all those things in the pre-Civil War antebellum period, all of this was already in practice, you know, chasing people down and so forth,

the patrols. All of that was already an institution of sorts on a localized basis for sure. What comes to pass is something that many people don't know about called the Colfax Massacre. It happened in Louisiana, April 13, 1873, which is fairly early in this process of de-reconstruction. A group of armed white men, including some clan members, overrun courthouse, protected by freedmen and state militia, after a very contested gubernatorial election. Can you take us through this event? Yeah, so there was a Republican judge seat, right, that Republicans were trying to protect, and black Republicans especially.

And in order to protect that, they really were exercising their First Amendment rights to free speech, to assembly, their Second Amendment rights to bear arms. And they start to gather, I guess you could say, like a black militia, a black army to protect this courthouse, to protect the integrity of the election. and then rumors start to spread. And whites respond, again, Ku Klux Klan along with others, saying actually what's happening here is a black revolt, which was nothing of the kind. Blacks were not exercising any sort of violence other than, well, I guess how dare they gather themselves together. Then the whites respond, and this is what sort of shows the true tragedy of the

Colfax massacre is whites overpower blacks as far as numbers. blacks sort of barricade themselves inside the courthouse, and then whites then set that courthouse on fire. As blacks are leaving the courthouse, white people begin to gun them down. And there's something of close to 100 or so that are killed there. And then reports show that whites then went into black communities and indiscriminately started killing blacks in these communities. So those who weren't even a part of the demonstration at all and simply throwing their bodies into the local river. And what was really devastating about this event, not just the sheer massacre. I mean, we're talking over 160 plus indiscriminately killed. But also, this was a real moment to show that, well,

one argument was maybe blacks could simply fight their way, right, forward. They could simply protect themselves. But this showed that they were simply outnumbered in a lot of these communities. It just was not realistic for them to pick up arms and protect themselves. How was the federal government not involved in this? I mean, this is a, 1973 and they're still around. Well, the federal government is involved, at least in the aftermath, right? So again, I think we mentioned just a little bit how union soldiers on the ground, they do protect, you know, Black's ability to vote, et cetera, but they can't protect everywhere all at once, right? So these things are just inevitably going to happen. But you can still have

some force in prosecution, right, in the after effects. And that's what the federal government does. They prosecute several of these conspirators. But then, the Supreme Court actually ends up kneecapping the power of Congress in the case that follows called US v. Crookshank. So this is where the federal government prosecuted these individuals for conspiracy, right to violate the rights of U.S. Americans. And those rights included, again, the right to free speech, the right to assemble, the right to bear arms. These are rights that you'll find in the Bill of Rights. Colfax is part of a large picture of violence, you know, a phenomenon of violence across the South at this time. I don't know if it was the time of year. I guess

spring starts things. But in this period, a man named Wade Perrin, who was a Republican member of the South Carolina House of Representatives, is shot and killed the day after he's reelected for the second time. He was shot by a group of white men affiliated with the clan. There are all their major moments like this all across this and in years to come as well. At that moment, the federal government starts to react. How does Congress take action just to put an end of this kind of violence. Yeah, they largely tried to up prosecutions, right? And especially this is a Republican Congress, right? They're still in power. It became increasingly apparent that this Ku Klux Klan, right, even though you can argue how organized were they, regardless of your thought,

that Congress really kind of understood, at least Republicans understood, the KKK was the unofficial army of the Democratic Party, right? And how do you counteract that? Well, you need federal troops, right, to counteract this army. So they make sure that they step up prosecutions, right, to try to quell some of this violence. Unfortunately, they are not wholly successful in doing so because you still get not just small cracks, but massive cracks like the Colfax massacre that are able to occur. Yeah. This is so much about Grant and enacting the new Justice Department, in fact, all of this is about this idea of taking action militarily. which was not what the federal government wanted to be doing after the Civil War,

but the last thing you wanted to do, but suddenly there is, as you say, a terrorist army happening that is unprecedented. By 1872, those actions taken, those enforcement acts of 1870, have really taken root and really had an effect. 1872, the KKK is severely weakened. African Americans are back to voting in record numbers throughout the South. But at the same time, and this is a really important, sort of a counterbalancing thing here, the Northern opinion about all this begins to change. Think about our own generations and how quickly we forget what happened 10 years ago. It's a natural evolution of society in a way. But in this case, you've got a new generation coming up, many of whom wouldn't have fought in the Civil War.

By this time in the 1870s, Northern opinion has really changed on the whole matter, right? Yeah. And unfortunately, this is maybe even just the natural ebb and flow of politics itself, because we have to keep in mind that the Republican Party, right, formed in 1856 or so, they have been in power since 1860, right? So we're talking 12 years, right, of continued control by one party over the nation. And so things are inevitably going to start to creep in, such as a scandal, right? So it's not just about protecting the rights of all Americans anymore. Now you have scandals in the Grant administration, like the Whiskey Ring scandal, right?

Some administrators conspire with whiskey distillers, right, to avoid paying liquor excise taxes. And then you have the depression, right, of 1873. There's this panic where there was all this investment in railroads, right? And then suddenly railroad bones start to falter or default. And then you're thrown into this sort of depression. And political will is just waning, right? Congress is facing an intransigent south along with its own scandals in its own house. And it's hard to keep it together at that point.

Well, at 1874, the Democrats take control of the House. That's, you know, just like we have in these days, it all switches because the purse strings are suddenly controlled by the other party. And that's for the first time since the Civil War. And that's where we really, we have to harken back to Colfax as being such an important chapter in this story. I mean, there's all kinds of stories of lynchings and violence, of course, and it's going to build throughout the coming decades.

But Colfax stands really as an alarm. a red flag, if you will, in this whole thing. And it results in an actual Supreme Court case, right? That's right. It's not that the federal government does absolutely nothing, right? So they prosecute at least some of these conspirators. And the case is US v. Crookshank based on the enforcement acts, they argue that these individuals, these conspirators violated the rights of these black Americans, their right to free speech, to assembly, to keep and bear arms, et cetera. The idea the enforcement acts was really to protect the rights of U.S. citizens. And so this was, I guess you could say, a watershed moment for reconstruction and moving forward. Would all this legislation actually

be effective? Interesting. So we're talking about the perpetrators of the Colfax massacre being tried. I would have thought that would have happened at a lower court and pretty obviously that they'd violated law. Someone's taking this all the way up to the Supreme Court for a reason. Well, yeah, that's right. I mean, a natural sense of litigation, right? It starts in district court, ends up in circuit court, and then eventually the Supreme Court. And the reason why the Supreme Court takes up this question is because there's an important question of what actually are the privileges and immunities that are protected by U.S. citizens under the 14th Amendment. Because remember, we talked in the previous episode about congressional power. This was a huge question.

right, how much power did Congress actually have, right, to protect the rights of citizens and in US v. Crookshank, basically the court was asked the question of, can they actually prosecute these individuals, right, who were violating the rights of blacks? Thinking about organization, it's like, well, the Ku Klux Klan was a private organization. For all intents and purposes, from a legal sense, it wasn't really the state, even though I think we can make arguments, right, that this was really the state acting. But the question before the Supreme Court, was, can Congress reach these sorts of individuals? So you're saying that the question was, when Congress creates the enforcement acts, which are really prompted by the Colfax massacre, there are those who are

saying Congress is overstepping its jurisdiction, that this was a state matter, right? That's right. The only people who could prosecute these individuals is states under state law in state courts. You cannot set up federal courts. But because those cases had failed for those who wanted to prosecute those folks in those lower case courts suddenly has moved up to the Supreme Court as a matter of constitutional argument, right? There is a larger argument, a broader power that has to be discussed. Yeah, and everything was at stake here, right? Because you have to keep in mind, okay, let's just imagine a world in where we said, okay, it's states, state courts, state law, who is sitting in these state courts, right? It is not people who are going to be favorable

to protecting the rights of blacks. So it has to go to the federal government. And again, this is about the suffrage. This is about voting rights ultimately and how, I mean, that was because of an election that that had happened, this massacre. So when we come back after this break, we'll find out what happens in this pivotal Supreme Court decision. We're back with Professor Bradley Rubiro of Brigham Young University. We're now in 1876. There was a hotly contested presidential election underway at this time. And during this period, there is also this incredibly important Supreme Court case, which is the U.S. versus Shank, 1875, what happens during that case that will inflame tensions? Yeah, so this case, like I suggested before, this is a watershed moment. The Supreme Court decides two really important things. First, as it relates to protecting the rights of U.S. citizens. So again, we mentioned free speech, assembly, right, to keep in bare arms. These things are all at stake for black Americans, right, in the South, who simply want to

protect their right to exercise their right to vote. The court says, actually, these rights are not protected by the 14th Amendment. What? Yeah. These rights are not protected by the 14th Amendment. The 14th Amendment protected certain privileges and immunities of U.S. citizenship. The privileges and immunities of U.S. citizenship did not include free speech, the right to keep and bear arms. A prior case in 1873 called the Slaughterhouse cases determine that actually those privileges and immunities are very basic rights, such as you might find this sort of silly, but this is what they said, the right to use navigable waters.

That's what was protected by the 14th Amendment, the right to habeas corpus. These are the sorts of things, but not some of these other rights. So when Congress tries to protect the rights of blacks in the South to keep and bear arms to free speech, they have overesteading. step their bounds. Oh, my goodness. This is huge. I mean, this is a comment on everything that has happened in the last 10 years, right? Or since the Civil War. Yeah, that's right. Basically, the court said Congress has been operating under a false premise. They thought they gave themselves powers to protect all of these rights. They actually don't have any of those. And then the

final step that they took, and this was sort of a hint, they said, also, by the way, you're prosecuting individuals here. The 14th Amendment says that states can't abridge these rights. It doesn't say anything about whether individuals can abridge these rights. So there's also, they didn't solidify this at this time, but they suggested that Congress might not have the power to actually, let's say, protect blacks from their rights being infringed by individuals, which if you're thinking about enforcement on the ground, it's individuals largely, Right, who are violating these rights. It's very confusing because, I mean, basically you're talking about the same Supreme Court that was involved in creating these amendments to start with, right?

Yeah, these are Republican appointees on the court. And, you know, we don't have to dig all the way into the weeds here. But what I will just suggest, and you might find this in my book, there is a ongoing tension of how much federal power, right, is operable under these amendments. And this is just showing its ugly. rearing its ugly head, if you will. These old arguments in the Antibone period begin to rear their ugly heads again, and the court is citing, unfortunately, on the side of less federal power. We need to curtail what the 14th Amendment actually reaches. Fundamental in understanding this period. So that Supreme Court case, Crookshank, is 1875. It's in the context or against the backdrop of the

1876 presidential election, which is hugely and hotly disputed. This is between Rutherford-B. Hayes and the Democrat, Samuel Tilden, it's such a close call. It requires, you know, it's almost like Bush Gore 2000. It's that kind of electoral college argument that was happening. Can you explain it how it works out? Tilden, it seemed like he won the popular vote as well as actually the electoral vote, potentially. But there were several states that were in dispute. And eventually, they actually have to set up an electoral commission in order to resolve these matters. And that electoral commission is largely being led by a Republican Party who is still in power and they're just grasping to hold on to power at this point. Right. They would have lost the house in two years before.

That's right. They lost the house two years before. And so they're barely hanging on at this point. So in order to make sure that Hayes, the Republican candidate, wins the presidency, again, depending on who you ask, but effectively there was a deal struck, right, with the Democratic Party that would allow Hayes to be president. to be largely conciliatory to the south, including cabinet selection, making sure there's southern representation in this cabinet, but most importantly, removing troops from southern states. There you go. Because we've been talking about enforcement this whole time. Well, they had to remove troops from southern states in order to ensure that Hayes would actually

win the election. Right. This was a democratic demand. And as a result, the loss of enforcement of all of that which came to pass. But the importance of Crookshank is that there's this other legal backdrop to what I have always chalked up to a political situation. And in fact, it has been legally argued out that the federal government doesn't have the rights to enforce these laws. Yeah. If you think about it from a Republican legislature perspective, they're sort of getting it from both sides. They are losing more and more political will from the people themselves.

They're losing elections. And then on the other hand, the Supreme Court is simply unwinding with case. after case after case, every single Reconstruction Act that Congress has passed. So if you're Reconstruction Congress, if you're Republicans in Congress, you feel like you have your hands tied behind in the back. The best thing you can do is, yeah, let's just have this compromise and at least ensure that the executive is run by a Republican, even if effectively all their power is lost. Importantly, obviously, those three amendments are never repealed. They sit there, but the wind in their sales has been taken away at this point by the mid-1870s. Yeah, I would argue that the 14th Amendment, especially, is just a dead letter, right?

Literally, the provisions mean almost nothing at this point because you had, I mentioned before, the slaughterhouse cases in 1873, privileges and immunities. We thought it was this robust idea of fundamental rights, along with enumerated rights in the Constitution. Actually, no, it doesn't mean much of that. Yeah. Another case that quickly followed, actually a week after Bradwell v. Illinois, if you're thinking about the progressive notion of the 14th Amendment, that one actually involved whether women could practice law, for instance. And the court said, well, no, see our slaughterhouse case. We said that these rights are not so expansive. So no, women can't practice law as a matter of constitutional right. And then by 1876, then the court says, well, we didn't quite say that the bill of rights weren't included, but now we're saying they are included, right? They are not. not included. So yeah, it's just a stripping down, stripping bear, the 14th Amendment. And then the 15th amendment, once federal troops are removed, then you could say the 15th Amendment effectively

becomes a dead letter as well. Not necessarily because of interpretation, but because of political reality. Yeah. Voter suppression becomes a reality. And all of those measures that were, that the KKK would have been fighting for are rapidly adopted and disenfranchising those black voters. As a result, Southern Democrats, they call themselves the Redeemers, retake political control, and blacks Americans are systematically disenfranchised. This is it. This is the, I don't know if it's official, but this is the 1877 collapse of reconstruction, both on the political side and the legalistic side, the judicial side. Yeah, and I should just mention, you know, we've been focused a lot on national politics, but it's important to keep in mind that not, did you just have

redeemers sort of flooding Congress, but you also have redeemer governments sort of being ushered in into the Southern States. They're actually replacing these progressive constitutions that we talked about in the last episode. They're all being replaced, right, by new constitutions that completely undo everything that was done. Yeah, I've been lobbying to do an episode on Grant having a third term. If only he could have had one, is an interesting counterfactual, but for another time. This results, of course, in what will happen several times in the coming years, a migration. This would be a first migration, I guess, the Great Exodus that's called of 1879, which follows this end of federal protection, thousands of black Southerners leaving their states and heading for

other worlds, notably Kansas, right? Yeah, that's right. So this is what many refer to as the Great Exodus. Unfortunately, you find African Americans are just leaving in droves right from the south, because there was just little to no protection from the increasing violence against blacks. Yes. Before you had, yeah, little spats here and there around southern culture, etc. But now this is the law.

This isn't just individuals, right, who are taking it upon themselves. This is effectively the state. This is the local community. This is the local government that is forcing blacks to, you know, tow a very, very, very, specific line. If they seek any advancement on their own, then they are met with violence. Or they just breathe, frankly, they're met with violence. And so, yes, it creates a mass exodus. There's like a man named Henry Adams, who was formerly enslaved gentleman and becomes an activist helping those who sought to flee. He testifies in Congress on why this exodus was happening.

And here's an excerpt of what he says, the condition of our race was such that we could not get along in peace. We were whipped, beaten, and killed, and the laws were not enforced. If a colored man earned money and saved it, he couldn't keep it. The white people would charge him double for everything, and at the end of the year, he was always in debt to the landlord. We saw that there was no safety for us in the South, neither for our lives nor our property. I mean, there you go. That's unfortunately an account that will be repeated in other chapters of the coming century almost, but it certainly is the beginning of that. And it really roots in the disenfranchisement, but also the dissolve of all those protections that everybody assumed would be the engine of change. That progression is over.

I want to also talk about a man named John Robert Lynch, Black Mississippi Congressman during Reconstruction. He bore witness to the stripping of black power in the South on the state level, as you mentioned there, right? Yeah, that's right. John Lynch, you know, he mentions the other side of disenfranchisement. We've been talking a lot about the violence. And he's, mentions actually just simply, well, there are other avenues also in which blacks were disenfranchised. And many of our listeners probably will recognize some of these measures, right, like poll taxes, literacy tests, property qualifications. It's important to remember that the 15th Amendment just bars states from discriminating

on the right to vote as it relates to race or previous servitude. It doesn't actually say anything about qualifications, right, of what it is to vote. In fact, it doesn't say anything about the ability to be able to hold office either. So southern states, what they largely did was they passed these laws that would largely favor whites, poll taxes, property qualifications, right? In a world in which violence is stripping blacks of not only their property, but also of their gains, right? Their lawful gains under employment, they don't have enough for poll tax. They don't have property. On the other side, literacy tests, right?

this ranged anything from an actual written test to this sort of oral test, right, of can you tell me what, you know, the Constitution of Mississippi says? Or can you name all of the legislatures in Mississippi? And these were largely capricious and arbitrary in their administration. Blacks who took this test were subjected to very rigorous questioning. And even when they got everything right, they were told, you're wrong. While whites were subject to not so rigorous of testing and even when they're wrong, told, you're right. Right. There's a very famous woman named Ida B. Wells, who was a journalist that we should talk about in the context of all of this. She was an activist in Memphis, Tennessee, documenting the wave of white mob violence after

reconstruction. 1892, she investigates the lynching of three successful black store owners whose business, you know, competed against the white-owned grocery. This is her quote here. The city of Memphis has demonstrated that neither character, culture, nor wealth can make a black man white, or secure for him the immunity from prejudice. Thomas Moss, these are the men, Calvin McDowell, and Will Stewart were taken from jail at midnight and brutally shot to death. Their crime? They had built successful businesses, defended themselves against white attackers, and were taking trade away from the white merchants. I mean, this really sits squarely in the simple justice, which is being violated here. Yeah, it shows that there is no opportunity for black advancement in many pockets of the South.

The moment you get a step ahead, you have to take three steps back, which is, again, why you have this mass exodus. And IW. Wells, right, you know, really influential, important woman along with W.E. De Boy are integral in starting the NAACP. which begins eventually a legal strategy to try to challenge a lot of these actions and really help kick off the civil rights movement. But unfortunately, her account is simply all too common. I mean, this is not a once in a lifetime or a single moment in post-reconstruction history. This is daily life for blacks. And all of this basically are the seeds of what will become the green. growth of Jim Crow laws in the coming decades. So when we come back, we'll talk about those

laws and how they sprout it. We're back talking about the collapse of reconstruction and very specifically now in this section about the birth of Jim Crow laws. Brad, you have a book coming out. I want to tell people the title is, until the last yoke is broke, the constitutional vision of Frederick Douglass is coming out in September of this year. You argue that the final death of reconstruction really comes in 1883, isn't it? Yeah, that's right. with the civil rights cases. So to give some context to why this is, what I'd argue, the real death of reconstruction, you have to go back to 1875.

Now, when we talked about this year, just a little bit ago, it was all defeats, defeats, defeats, right? And, you know, the instilling of redeemer governments, Republicans losing power. But there was a small blip of hope here as well. There was the 1875 Civil Rights Act. Now, this was passed basically right after the day. death of Charles Sumner, famous abolitionist and senator from Massachusetts, who was one of those radical Republicans leading change through early days in reconstruction. He says on his deathbed to

Frederick Douglass and others, don't let this bill fail, right? Make sure that this bill passes. What this bill does, and it reached farther than any other civil rights act beforehand, it protected all those civil rights that we mentioned before, but also what we, in our even modern day sense, understand civil rights to be, the right to be able to partake of any public accommodation without discrimination, right? So it made sure that public theaters, any public places of public note or recognition, like store, shops, etc., you had equal access regardless of your race, right? So this, I mean, this is expansive, right? We won't see this again until 1964, right, legislation like this. This is passed in 1875, but then it is challenged in court.

and they eventually hear those cases under what's called the civil rights cases of 1883. And the ruling on those cases happens at once or in different cases? They bundle it all together. The Supreme Court does this often, right, where they get several cases that all pertain to a similar question, i.e. in this case, the constitutionality of the 1875 Civil Rights Act, and then they just bundle it all together into one and decide the case there. And there is an eight to one decision against the Civil Rights Act of 1875 because it is deemed unconstitutional. I suppose that is similar to what happened with the Colfax case, right?

Krukshack. Exactly. They basically pick up where Kulfax, the Krochshank case, left off and solidify. I mentioned just very briefly how the court hinted that, hey, there might be a problem here with enforcement. One, as to the rights that are being protected, because we don't think the 14th amendment covers them. And then who is actually the one being prosecuted here, if it's individuals as opposed to the state. So the civil rights cases, the court finally says, yeah, you cannot Congress pass a law that can force individuals to respect the rights of others. Wow. It has to be the state. So in a weird way, basically they're saying, well, if it's a hotel, right, if it's a place of public

amusement, whatever it is, as long as it's the shop owner or the owner of the hotel or the theater that's discriminating, then Congress has no place here, right? Because that's just simply individuals choosing to discriminate on the basis of race. And there's nothing they could do about it. And again, these three reconstruction amendments remain unrepealed. They are in the Constitution, 13th, 14th, and 15th. What is now this new chapter is that the federal government has no right to restrict discrimination of people on the state level. That's the big distinction between that. Sure, you can say all you want about the holiness of human values and the rights of man, all you want, but we have the right to tell those people what they can and cannot do on the ground. Yeah, that's right. And so the last

hope that Congress may be had, right, as far as what powers we have to protect the rights of blacks and the South, and really every Americans in the Union, you could say, right, is to simply gone away. those who might suggest, well, this isn't violence, right? This isn't gunning down people and throwing them into rivers. Frederick Douglass had this really great point that he made in the Antibound period as it relates to why legislation like this is so critical. Early in Antibone period, his home burned down. A lot of people expected arson. He fully suspected that it was arson, and someone maybe suggested to him, why is this such a big deal? It's just papers, just things. He says, well, the same spirit that's going to burn down my property is the same spirit that's going to not respect my life.

Wow. And so for him, I think there's a really close tie between, oh, you're not going to allow people to enter into a public establishment and, you know, dine there, eat there, sleep there. That's the same spirit that's actually gunning down these people, right, and throwing them into rivers. You can't disentangle these things. Yeah. The white southerners now realize that the federal government will not protect those black citizens' civil rights in so many regards, and those that it does protect, we can do things that will, you know, stem the problem. As a result, I mean, this really leads to a number of laws passed and a consolidation of laws that become the Jim Crow laws, as we know them. Most famously, it is argued in the Supreme Court, Plessy versus Ferguson, which results in the separate but equal ruling that the federal government basically saying, hey, if both sides have equal choices here, quality of life, et cetera, then you can do it all you want with just, you can separate races for your own reasons. The federal government can't do that. Can't, can't infringe on that. That's the beginning of all of Jim Crow.

Yeah, that's exactly right. This is where you have the famous separate but equal doctrine. That's, um, that's announced by the court. And the court effectively says in Plessy, well, to the extent that blacks feel like they are. subordinated in this new regime where it's separate but equal because they can't engage in the same accommodations. That's simply a badge inferiority that they put upon themselves. Yeah. Is what the court says. There's nothing, effectively nothing to see here. But with both those cases, the civil rights cases, as well as Plessy versus Ferguson, I think it's important to note that there is still glimmers of hope, or at least some people in the nation

that still recognize the Constitution for what it is. Justice Harlan, for instance, is the lone dissenter in both of those cases, right, where he says, well, no, in case one, civil rights cases, clearly this is state action, even if it's a private hotel or theater owner, it's state action. Absolutely, Congress has power. And then in Plessy v. Ferguson, he effectively says, the separate but equal doctrine absolutely does impose a badger and inferior. on blacks. And he makes this point saying, you have now made this colorblind constitution into a constitution that recognizes race and separates the races. For anyone who wants to listen to it, there's an in-depth conversation on Plessy versus Dirkison in a recent episode, which I really

encourage you to understand, because it is really the centerpiece of all of this, Jim Crow stuff. And from here on, it's 70 years of this. I mean, really defines on the domestic level anyway the life of the United States in so many regards. I'm curious about your take, Brad, as a law professor, the historic failure of reconstruction resonates through the 20th and 21st centuries. How do you reconcile yourself to that? And how do you see the eventual success of the 60s, legislatively anyway, hearkening back to all of this? What had to be undone to make this work out? The way I think about it, it's hard not to, frankly, have some sadness, right? When you just look at all the things that could have been that simply were not, right? But also, it,

I mean, maybe this is my own biases coming out, but this is why understanding history is so critical. Because sometimes we can look at history and say, well, everyone was simply racist in the past, and therefore we need to fully jettison everything that came before in order to usher in this new world, right, where people are equal and free. But that's actually not, the case, right? You have these moments in time where people, even in their circumstance, where they're coming out of a slaveholding nation, right, where blacks are subjugated to levels we can't even really fully comprehend. And they still could grasp their moment and pass legislation that requires equal treatment under the law that allows people to enter into establishments, right,

as they see fit. It actually shows some hope, right? And studying Douglas, he's affected me in a lot of ways in this regard that you can have a lot of hope, right? And what really matters is what people do, right, as opposed to we've inherited this mess and therefore we must be stuck in the mire. No, it matters what people do in any given moment in time. So we can absolutely reconcile our history with our present and actually glean principles from the past on how we ought to act in the present. So much of it is common sense and rational thought. You know, we, Once you begin to understand each other and your fellow members of society, despite what race and creed, you can't deny rights to people. That's the idea. And so I mentioned in previously aspirational constitutionalism as this term that I found preparing for this episode, because you have to find some hope in this Constitution, which has been so downtrodden from 1890 into the 20th century, that at least those amendments are there as this,

you know, small flame to be fanned later on. And, and sadly, by events such as massive lynchings and so forth that become very famous through the media. You know, the rise of media has a lot to do with this, you know, especially when you talk about Selma. But there is hope in the fact that those amendments were still there. Yeah, that's absolutely right. As Frederick Douglass put it, he said the reconstruction amendments were, quote, perfect, end quote. He said they were absolutely perfect. There was nothing new that needed to be changed. It was simply administration. The way he put it, I mean, he was great with metaphors and allegories and all of the

above. But one way that he put it was what we need is a wall of fire around the republic. Interesting. Because if you think about like fire, it's protective. We think about like a wall of fire, but also there's an energy, right? There's an energy behind this, the idea that we need to actively pursue just ends. The Constitution is what it is, and it provides all the tools. But it doesn't provide the legislation, for instance, right?

We have to still act. We still need good citizens who are going to act for the common good, right, in order to achieve the ends that the Constitution lays out. The promise of reconstruction did not disappear overnight. It was slowly dismantled, piece by piece, through violence, political compromise, and the retreat of federal protection. By the 1880s, the brief flowering of black. political power have been crushed and the foundations of Jim Crow were firmly in place.

That was what we wrote as the ending of this. What you're saying is that there was still hope. As disheartening, as the failure of reconstruction really is, at least there's some glimmer of light that can later show us the way towards the world. But we live in today. Yeah, that's right. That's why we need a sober approach to the past. We need to understand all of its hills, but we need to also understand the good, right,

that came of it and understand the original purpose. of the Reconstruction amendments that then can allow us in our current time to act in more just ways and actually fulfill those ends. Bradley Ribeiro is Associate Professor of Law at BYU Law School. He is the author of Until the Last Yoke is Broke, the constitutional vision of Edric Douglas, which is out at September 29th this year. Thank you so much, Bradley. It's been really great to meet you, and I really appreciate you taking us through this

complicated history. Yeah, thank you so much. I'm so happy to talk about this with you. Hey, thanks for listening to American History Hit. You know, every week we release new episodes, two new episodes dropping Mondays and Thursdays, all kinds of content from mysterious missing colonies to powerful political movements

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