The Destruction of the Reconstruction Acts

We're needing a refresh on the laws that formally put a stop to American slavery - and are now being rapidly peeled back by the people who never wanted them

Dr. G.S. Potter | Senior Editor

Slavery didn’t end (for the most part) because someone won a moral debate. It wasn’t abolished because one-by-one, free-thinking Americans decided to give it up.  And slavery didn’t end because it became culturally taboo or passe. 

Slavery ended because legislation was passed.

The Civil War was fought, and 800,000 people died, to decide who had the authority to legislate the fate of Black men, women and children. The Union won. As part of that victory, they were able to set the terms and conditions by which the Confederacy could rejoin the United States. Those terms and conditions included the ratification of the Thirteenth and Fourteenth Amendments.  And in this way, formerly enlsaved Black individuals, or “freedmen”, were granted freedom, citizenship and equal protections under the law. 

States rights should never be discussed without full consideration of their limitations.  The federal government has the absolute right to intervene and override the state if they attempt to legislate slavery or discrimination. Because of the Fifteenth Amendment, this authority also extends to the protection of voting rights.  The Union won that war.  Because of that, we should not have to fight it again through the force of arms or the farce of public debate.

Unfortunately, there are those that still fly the Confederate Flag.  They do so in their homes, in their Congressional offices, and as they commit insurrection on the government itself.  For generations, they have built statues and monuments to their favorite slave-owners and designed legislation to deny Black (and Brown and Indigenous) people the full privileges of citizenship in the US.  Under their new brand as “MAGA” or “Qanon” and other abominations, they are attempting to dismantle the only three pieces of legislation that stand between us and life before the Civil War.

The Reconstruction Acts

The Reconstruction Acts – the Thirteenth, Fourteenth and Fifteenth Amendments – are all that stand between us and a Confederacy that almost became permanent about 160 years ago.  Three laws. The Confederates, masquerading as Republicans, have already taken one of them down. 

Their recent obliteration of the Voting Rights Act of 1965 functioned to completely demolish the Fifteenth Amendment.  Their attack on the education system in the name of defeating Critical Race Theory stands to not only neutralize the 14th Amendment, but weaponize it against us.  And the 13th Amendment, the only thing that stands between us and slavery, will be left completely alone and open for attack. 

It would only take a couple of court cases to take us back to the Antebellum.  It is unthinkable to consider what would have to happen to bring us back. For now, let’s assess where we are.

The neo-Confederacy is attempting to destroy the reconstruction acts in efforts to, as you guessed it, “Make America Great Again.”  Which, in their minds, means undoing the Civil War. To undo the Civil War, all they have to do is strategically dismantle the Thirteenth, Fourteenth, and Fifteenth Amendments.  Their first target was the Fifteenth Amendment – the right to vote.

The Voting Rights Act was an extension of the Fifteenth Amendment.  After the passage of the Fifteenth Amendment granting freedmen the right to vote, states and localities began legislating barriers to the ballot box. The Voting Rights Act was passed in efforts to tear down these barriers.

The VRA’s teeth were found in Sections 2 and 5.  The first successful blow to the Voting Rights Act came from the Supreme Court in 2013.  Section 5 of the Voting Rights Act forced certain districts with established histories of discrimination to secure federal approval before passing changes to their voting legislation.  This section was overturned by SCOTUS through their ruling in Shelby v Holder. Section 2 was completely neutralized by SCOTUS through Brnovich v the DNC (2021).  

Section 2 reads …

No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to vote on account of race or color.

When assessing a claim of discrimination in court, there are two dominant standards which can be applied.  One is intent.  The other is impact.  In some areas of law, discrimination can be proven by establishing that the outcomes, or impacts, of the law disproportionately damages individuals and communities of a certain race or color.  In others, a plaintiff must prove that the policy was specifically designed with the intent of discrimination against a person or community because of their race.  An impact standard more effectively protects target communities from discrimination.  An intent standard is practically impossible to prove in a court of law. 

In 2021, SCOTUS inserted an intent standard into Section 2 of the Voting Rights Act.  This effectively rendered the act useless. As a result, this standard extends through to the heart of the 15th Amendment, effectively dealing a death blow to one of the three Reconstructions Acts.

15th Amendment Down … 14th Amendment Next

This same strategy could potentially be applied to the Fourteenth Amendment.  The neo-Confederacy could launch court cases in the areas of education, housing, and employment and bait SCOTUS into inserting intent standards into these areas, thus neutralizing the Civil Rights Act of 1965.  Much in the same way that the destruction of the Voting Rights Act ensures the destruction of the Fifteenth Amendment, taking down the Civil Rights Act in this way would also effectively neutralize the Fourteenth Amendment. Black, Brown, Indigenous, LGBTQ, and disabled Americans, for example, could then legally be discriminated against unless they could prove to a Confederate sanctioned court that a law, policy or practice was enforced with racist intent.  Impact would no longer be a consideration.

They could also revive their strategy to attack affirmative action measures in court. In 2016, Abigail Noel Fisher became the face of the anti “reverse racism” campaign when she claimed in court that she was denied entrance into the University of Texas because she is White. The Supreme Court sided with the University of Texas with a 4-3 ruling. However, today SCOTUS is more about its composition than Constitutionality.  If they hear an affirmative action case today, they could very well side with a White claimant, weaponize the 14th Amendment, and use it to destroy any policy or program aimed at closing the gaps and creating equity.

If the Republicans deployed this strategy, two of the three laws that stand between us and the Confederacy would have been destroyed.  What the Republicans may actually be planning could be far worse. 

Instead of completely neutralizing the Fourteenth Amendment, they are looking to weaponize it against us.

We got a taste of this when Black farmers in the United States were granted relief through the American Rescue Plan Act. This relief was passed in an effort to amend for generations of discrimination in USDA lending practices and to help Black farmers climb out of the resulting debt that was incurred. The Confederacy, though, launched a lawsuit (Miller v. Vilsack) claiming that the relief was discriminatory against White farmers. They were successful and the support was withheld. 

This same strategy can be used to turn the Fourteenth Amendment into a force that could potentially be used to reframe pro-BIPOC efforts as anti-white campaigns in the courtroom. Reparations would definitely be off of the table. Diversity and Inclusion programs would be obliterated.  Racial bias training would go up in smoke.  If it was done correctly, anything that approached the discussion of racism in the United States could be outlawed in the name of protecting White people from discrimination. 

Enter “CRT.”

While there are those who are fighting to win the debate on the true meaning of Critical Race Theory, and others are battling to prevent history from being completely whitewashed to the point of ethnic cleansing, the real battle may be for the future of the Fourteenth Amendment. 

In the name of eliminating Critical Race Theory from the classroom, a wave of policies are being passed in state legislatures. Many of these policies will be challenged in court under the First Amendment.  A potential counter argument could be that discriminatory speech is not protected because of the limitations imposed by the Fourteenth Amendment.  If the courts agree with this argument, the right to discuss let alone teach about the existence of racism would be overridden in the name of protecting White people from discrimination. 

And Now We’re Down to the 13th …

Whether the Confederacy chooses to weaponize the Fourteenth Amendment against us or destroy it completely, we can confidently know that we are dangerously close to losing it.  That would leave us with only one law standing between us and the Confederacy: the Thirteenth Amendment.

The Thirteenth Amendment never fully ended slavery. It reads …

Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.

Therefore convicts are still allowed to be enslaved.  Slavery still exists in the United States. It can be expanded and it can be redesigned for the modern era.  If we don’t stop the Republicans from taking full control of the Courts, the Congress, and the White House, they are more than likely to do just that.

In order to destroy the Voting Rights Act, the Confederates redefined racism to demand intent.  What would stop them from redefining slavery and indentured servitude? Perhaps violence is eliminated but mobility is still denied. Maybe plantations become a thing of the past but unpaid labor becomes the new norm. The Supreme Court has already asserted that …

Our precedents reveal that not all situations in which labor is compelled by physical coercion or force of law violate the Thirteenth Amendment.

In this same case they ruled that psychological coercion could be used to extract involuntary labor. 

While we may view the Thirteenth Amendment as a permanent fixture of our nation’s democracy, it is just a policy. Just like the Voting Rights Act and the Fifteenth Amendment.  t is vulnerable just like the Fourteenth Amendment.  And if we don’t start countering the Confederates at every turn both in court and at the ballot box, we stand to watch 1) the end of voting rights, 2) the end of protections from discrimination, and 3) the resurgence of slavery and the Confederacy. 

The Confederates have already torn down the first of only three walls that stand between us and enslavement. The second is about to crumble.  If we don’t act immediately and aggressively, there will be nothing standing between us, the Confederacy, and slavery.