Chattel slavery in the United States, because of its manifest injustice, was always morally tenuous. As opposition to slavery grew in the United States in the early Nineteenth Century, the states in which slavery was allowed adopted more and more draconian policies to prop up the institution. An example is the Alabama Slave Code of 1852.
Such codes help us understand the meaning and intent of the Fourteenth Amendment enacted after the Civil War to guarantee full citizenship to freed slaves and to end the practice of extending (or, more properly, denying) constitutional protection by race.
The 1852 slave code is virtually an anti-Bill of Rights. The code prohibits religious practice and preaching by slaves unless “in the presence of five slaveholders.” (§1022) It Public assembly is forbidden. (§1020) Gun ownership and even possession is denied to slaves. (§1012) It allows “slave patrols” to enter private residences “by force” and summary punishment for merely being away from the “plantation or household” of the owner “without a pass from their owner or overseer.” (§992) Property ownership is forbidden. (§1018) Of course, no procedural protections for those accused of crimes is afforded. The code even provides for the barbaric punishment of “one hundred lashes on [a slave’s] bare back.” (§1019)
Reflecting the linkage of slavery with racial classifications which made the American experience with slavery so peculiarly noxious, the Code is explicitly racist, treating even “free colored persons” differently from other citizens. A recent doctoral dissertation explains “the Penal Code of 1841, carried forward to the Code of 1852, indicates the development of a greater disparity in charging and sentencing between slave and free defendants, accomplished primarily by improving the condition of white convicts, while leaving unchanged existing law applicable to slaves.” Daniel Reese Farnell, Jr., “Alabama Courts and the Administration of Slavery” at http://etd.auburn.edu/etd/bitstream/handle/10415/1393/FARNELL_DANIEL_58.pdf?sequence=1.
Reading the Code one does not wonder why Thomas Jefferson, referring to the acceptance of slavery, said, “I tremble when I think that God is just.”
Understanding the way states allowing slavery propped up the system by denying even the most basic rights to slaves and often all black persons and by egregious discrepancies in legal treatment, tied directly to the race of the person affected help explain the provisions in the Fourteenth Amendment prohibiting any state law “which shall abridge the privileges or immunities of citizens of the United States” and extending the “equal protection of the laws” to anyone within the jurisdiction of a state.
The amendment thus restored to former slaves basic constitutional protection and prohibited the treatment of individuals by racial category, ending (at least on paper, since substantial progress had to be made over time) the slave codes forever.
Read The Alabama Slave Code of 1852 here: https://constitutingamerica.org/?p=4254
William C. Duncan is director of the Marriage Law Foundation (www.marriagelawfoundation.org). He formerly served as acting director of the Marriage Law Project at the Catholic University of America’s Columbus School of Law and as executive director of the Marriage and Family Law Research Grant at J. Reuben Clark Law School, Brigham Young University, where he was also a visiting professor.