Pod Insights Dan Snow's History Hit The Origins of Jim Crow About this episode The Jim Crow era is one of the darkest periods in American history. The country was divided by laws, customs and etiquettes that demeaned African Americans and segregated them from white Americans. But how exactly did this era begin? And was post-Civil War America always destined for racial segregation?
To answer this question we're joined by Aaron Sheehan-Dean, a Professor of Southern Studies at Louisiana State University. He explains why America's attempts to build a multiracial democracy after the Civil War failed, and how the wheels of Jim Crow were set in motion.
Produced by James Hickmann and edited by Dougal Patmore.
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1:54 Dan Snow? 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 $1 or $2 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.
2:36 Dan Snow? 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.
3:20 Dan Snow? 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 behaviours that oppressed black Americans.
4:05 Dan Snow? 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 US Constitution, the 13th, 14th, and 15th, which were supposed to abolish slavery, to establish equal protection for all citizens
4:48 Dan Snow? 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. Fry 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 Rings, so thank you much for 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.
5:33 Speaker 05 (speaking Spanish)
5:40 Dan Snow? Aaron, thank you very much for coming on the podcast.
5:43 Speaker 06 My pleasure. Thanks for having me.
5:45 Dan Snow? I guess if we're going to talk about Jim Crow, and 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?
6:10 Speaker 07 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 nine million Southerners, four million of those are black Southerners. So nearly half the population, four million enslaved. Actually, there are another probably four 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.
6:45 Dan Snow? Okay, so we've 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 US citizens. 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.
7:13 Speaker 07 So it's probably too bold to claim that all Northerners believed that African-American, Southern, black Southerners should become full citizens. But certainly, you're right, the 13th Amendment ends 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,
7:56 Speaker 07 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.
8:32 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?
8:44 Speaker 07 The army does stay in the South, though it winnows dramatically. The army at the end is well over a million men. That is, in 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 Fourteenth 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
9:27 Speaker 07 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.
10:10 Speaker 07 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.
10:33 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?
10:48 Speaker 07 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 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,
11:30 Speaker 07 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
12:13 Speaker 07 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
12:57 Speaker 07 that would have been unimaginable in the pre-war South. Tax assessor, local judges, things like that.
13:04 Dan Snow? But are they facing threats to their life and well-being?
13:07 Speaker 07 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.
13:48 Speaker 07 And the violence is intended to drive those people either out of the community or into a position where they are not asserting their claims to full civic life.
14:00 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 president, if you like, by the Democrats in return for him promising to end that Reconstruction period. So what happens next? Is this where we get the expression Jim Crow?
14:28 Speaker 07 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 sing. 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 an effort to restrict and prevent black men from being able to vote only happens beginning in 1890 in Mississippi and really in 1900 to 1903 in the other southern states. And I think really what's important is to recognize that these are not.
15:11 Speaker 07 Inevitable processes, that 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 are 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
15:56 Speaker 07 position themselves as part of the Southern social order.
15:59 Dan Snow? Wow, okay, well, tell me about these railroad regulations, these new rules.
16:02 Speaker 07 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.
16:45 Speaker 07 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 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
17:29 Speaker 07 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 the victim here, and they, the railroad and often the people who eject them are forced
18:14 Speaker 07 to pay the black person who has 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?
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19:33 Speaker 01 Outdated technology isn't going to improve a disconnected healthcare system. So what will? At Optum, we wake up every day and work for better. We call it healthy optimism. It's how we use insights and technology to help providers focus less on paperwork and more on patients. Will we fix it all overnight? No, but we'll wake up trying again and again, until healthcare works as one for everyone. That's healthy optimism. Learn more at Optum.com.
20:03 Speaker 03 This is a paid partnership with Apple Card. The coolest flex at brunch these days is not the Bloody Mary with the bottomless gold flake caviar topping. It's not whipping out your wallet to pay. It's not having a wallet at all. Jack's been an Apple Card user since 2019. That's the same year he tossed his wallet in the trash. Because Apple Card holders earn 2% daily cash back on purchases made using Apple Pay. It's the only credit card designed for the iPhone. I tap to pay with Apple Card at the grocery store, at the gas station, at restaurants. And yes, I use it at my second home, the farmer's market. Jack tapping to pay with his Apple Card with Apple Pay is his favorite thing to do. And the pleasant vibration and chime sound means I just got 2% daily cash back on my latest purchase. Apply in the Wallet app on your iPhone today. Subject to credit approval. Apple Card, issued by Goldman Sachs Bank USA,
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21:49 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?
21:59 Speaker 07 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
22:42 Speaker 07 of business facilities. And public facilities have to some degree been already been separate. Things like cemeteries and hospitals. But that's then put into law, so de jure segregation.
22:53 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.
23:05 Speaker 07 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 19-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.
23:48 Speaker 07 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 proprietor 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.
24:15 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.
24:29 Speaker 07 You would 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.
24:40 Dan Snow? And yet it was all there in the 1880s. If people have chosen to look, tell me more than about how these laws spread.
24:48 Speaker 07 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.
25:32 Speaker 07 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 were something like 102,000 registered black voters. And in 1905, there are something like 3,000.
26:01 Speaker 07 So it purges literally 96% of the voters, of the black voters, off the rolls. And there's a very deliberate mimicry here.
26:09 Dan Snow? And those 3,000 had passed, they had the money for the politics, they had 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.
26:23 Speaker 07 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.
27:01 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?
27:13 Speaker 07 Or a poll tax or an understanding clause. Yeah.
27:17 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.
27:27 Speaker 07 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 abridged 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
28:11 Speaker 07 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.
28:30 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?
28:41 Speaker 07 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 Crookshank. 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 Fourteenth 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 Crookshank decision, which responded to the most violent massacre of
29:22 Speaker 07 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 Fourteenth Amendment, under the reading of the Supreme Court in Crookshank, said, that isn't what the Fourteenth 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 the state level. And by then, the state courts were unwilling to take a case like that. No grand jury would
30:07 Speaker 07 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.
30:31 Dan Snow? This is Dan Snow's History. There's more on this topic coming up.
30:43 Speaker 03 This is a paid partnership with Apple Card. The coolest flex at brunch these days is not the Bloody Mary with the bottomless gold flake caviar topping. It's not whipping out your wallet to pay. It's not having a wallet at all. Jack's been an Apple Card user since 2019. That's the same year he tossed his wallet in the trash. Because Apple Card holders earn 2% daily cash back on purchases made using Apple Pay. It's the only credit card designed for the iPhone. I tap to pay with Apple Card at the grocery store, at the gas station, at restaurants. And yes, I use it at my second home, the farmer's market. Jack tapping to pay with his Apple Card with Apple Pay is his favorite thing to do. And the pleasant vibration and chime sound means I just got 2% daily cash back on my latest purchase. Apply in the Wallet app on your iPhone today. Subject to credit approval.
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32:29 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 in 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.
32:56 Speaker 07 It is.
32:57 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."
33:04 Speaker 07 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 re-interrogating 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.
33:48 Speaker 07 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.
34:17 Dan Snow? Let's talk about Plessy Ferguson. How did they come up with that interpretation?
34:22 Speaker 07 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 7/8ths 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,
35:04 Speaker 07 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, is 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 slaveholding household, John Marshall Harland of Tennessee, he cast the dissenting vote in Plessy and he says, "The United States has a colorblind constitution and this is
35:48 Speaker 07 a gross violation of that obligation under the federal law to protect people regardless of their color, to not recognize differences." Harland'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.
36:12 Dan Snow? It's such an interesting thing to hear US Supreme Court justices say, given the whole idea of the rule of law, the whole American experiment is based on the sort 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."
36:38 Speaker 07 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 created 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 are 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 ways can change folk ways."
37:20 Speaker 07 And of course, the government's running assumptions 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.
37:48 Dan Snow? So we got Plessy versus Ferguson. These southern states have got now not just de facto autonomy to organize their societies in this fashion, but sort of legal cover.
38:00 Speaker 07 They do. 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.
38:45 Speaker 07 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 is 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.
39:26 Speaker 07 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.
39:46 Dan Snow? And is the system called Jim Crow? Is it referred to as Jim Crow?
39:49 Speaker 07 It is. 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 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 its 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.
40:32 Speaker 07 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.
41:18 Dan Snow? Sounds like big government to me, Aaron. I mean, I thought that's what we didn't like.
41:21 Speaker 07 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.
41:52 Dan Snow? That's fascinating stuff. Thank you, Aaron, for coming on. Thanks so much.
41:56 Speaker 07 Thank you. Really enjoyed the conversation.
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