Cardozo Law Review
Donald Nieman, Constitution, Slavery, Reconstruction, Civil War, African Americans, Reconstruction Amendments, Thirteenth Amendment, Fifteenth Amendment
The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the Constitution." Professor Nieman also states that "in the course of a decade, the nation had moved from slavery to freedom, and from a constitutional order that sanctioned white supremacy to one that embraced equality of civil and political rights." Equally revolutionary "was the change in consciousness that occurred among African-Americans." The "constitutional vision" of African-Americans was the inspiration for the "equalitarian constitutionalism" expressed in the Reconstruction Amendments and their guarantees of "color-blind citizenship" and "equal rights." Professor Nieman traces the origins of these revolutionary changes to Northern African-American leaders who fought for equal rights during the era of slavery before the Civil War. These leaders "pressed their constitutional vision on Republican policy makers in Washington," during the revolutionary years of the Civil War and Reconstruction, and they "took it to the South, where it found a receptive audience" among the former slaves who "eagerly embraced doctrines of color-blind citizenship and equal rights and used them to shake the foundations of the southern social order." Indeed, commitment of African-Americans "to equalitarian constitutionalism reached far beyond Reconstruction and contained profound implications for American constitutionalism and African- American culture" far into the twentieth century." There are several issues that are raised by, but not addressed in, Professor Nieman's paper. For example, what exactly was the nature of the "color-blind citizenship" that transformed the Constitution into an equalitarian document? This question encompasses several others of fundamental importance regarding American federalism and the scope of authority conferred by the Reconstruction Amendments on Congress, United States attorneys, and federal judges to enforce the rights of Americans. What kinds of rights violations did their framers intend to redress? That is, what rights did they intend to protect and from whom did they intend to protect them. What kinds of remedies did they contemplate? How did they envision the legal process through which often illiterate and impoverished Americans would enforce their rights?
Robert J. Kaczorowski,
Reflections on From Slaves to Citizens Bondage, Freedom and the Constitution: The New Slavery Scholarship and Its Impact on Law and Legal Historiography, 17 Cardozo L. Rev. 2141
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/226
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