An Interview with Kate Masur

An Interview with Kate Masur

Jonathan W. White

Kate Masur is the Board of Visitors Professor in History at Northwestern University. She is the author or editor of several books, including Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction, which won the Littleton-Griswold Prize, the John Nau Book Prize, and the John Phillip Reid Book Award, and was also a finalist for the Pulitzer Prize and the Gilder Lehrman Lincoln Prize.

Jonathan White: When you did an interview with Sara Gabbard for Lincoln Lore in 2019, you told her that you were writing a book about the origins of the Fourteenth Amendment. Did you always envision writing such an expansive book that would go from “the Revolution to Reconstruction”?

Kate Masur: Until Justice Be Done took shape over a period of years, and it did take some twists and turns along the way. I always knew there were aspects of federal policy during Reconstruction that I wanted to reconsider by going back in time, to the antebellum period and even earlier. By 2019 I had in mind the basic shape of the book. I was very interested in how northern states, after the American Revolution, both abolished slavery and implemented new and varied policies when it came to race and inequality. To me the most striking examples were the states that emerged from the Northwest Territory. The Northwest Ordinance (1787) outlawed slavery in the territory. It’s widely known that slavery already existed there and that some people fought to maintain it. What was less known—and far less grappled with—was that even as many white people in the region (today’s Ohio, Illinois, Indiana, Wisconsin, and Michigan) accepted and even supported slavery’s abolition, they also moved to implement racist laws that restricted and marginalized people of color.

For me, those anti-Black policies brought into focus the reality that in the aftermath of race-based slavery, a society could decide to create essentially a regime of overt, legally sanctioned racial subordination. That is what the governments of Ohio and other Midwestern territories and states envisioned in the early nineteenth century. When we look at that development, we should ask the question: How did that system ever get discredited? Why didn’t the Republicans of the Civil War period try to implement a system of racial apartheid at the national level? Instead of imagining that American policymakers somehow naturally tended to favor racial equality over the long term, we need to ask how this country got the policies it did. That is, given what so many free state governments supported before the Civil War, why were the racial equality policies of Reconstruction, including the Fourteenth Amendment, as ambitious as they were?

JW: Please set the stage for us. What restrictions did the state and federal governments place on African Americans? And what rights did they have? Was there a change over time, and were there different types of laws and customs in different places?

KM: Black Americans faced a patchwork of restrictive laws across the country, including in the free states. John Jones, Chicago’s best-known Black activist of the period, explained this in a May 1848 letter to John Hale, a U.S. senator from New Hampshire: “Sir, having read the constitution and laws of the different states and particularly that of the United States . . . I find that in Mass[achussets] I should be regarded as a citizen & my political rights guaranteed and respected. . . . But here [in Illinois] we have no protection and my friends even though they may be citizens of the state of Mass. are forbidden to settle in this state.”

Among other things, Jones was noting the absence of a federal baseline for individual rights in the United States. The Constitution promised very little in the way of individual rights. Under the original Constitution, states could permit slavery and create legal codes to delineate how people could be bought and sold as property. State governments could decide who could vote and who could not, along lines of gender, age, race, wealth, and nativity. States determined who was a citizen of the state, and who had the right to own property, to appear in court, or even to settle permanently in the state. The Bill of Rights—commonly understood as the first ten amendments to the Constitution—enumerated some rights and gestured to many more. But the Constitution was widely understood to protect those rights against violation by the federal government only, not by the states.

States therefore could and did determine what rights their inhabitants were supposed to enjoy. States regularly regulated speech—for instance, when southern states barred abolitionist publications. States violated people’s due process rights (not to mention their human rights) when they permitted slavery. States decided what rights to property women would retain when they married and whether, and under what conditions, they had to turn over their property to their husbands. And the list goes on. And all that is before we get to the local level and the question of whether state laws were consistently enforced.

We need to keep in mind, however, that government in the United States was about much more than just individual rights. It was also about defining and promoting shared welfare. One thing that really interested me as I dug into this history was the relationship of the “black laws”—or really, anti-Black laws—of the Midwest to what people sometimes call the poor law tradition. Dating back to early modern England, communities took control of deciding how to deal with poverty in a way that would provide for the common welfare as they understood it. This included making distinctions between destitute people who were established members of the community and considered deserving of relief, in contrast to those who were considered transient outsiders and not entitled to help from the community. Transients who were not self-supporting could be involuntarily deported to their community of origin. Poor laws were the framework through which community leaders decided who was an insider and who was an outsider, who was part of the community and who was not. And of course, these questions mattered most for those who were poor or vulnerable and perhaps didn’t have anywhere else to go. British colonists brought the poor law tradition to North America and aspects of it continued into the nineteenth century. In the Midwest, state legislatures passed anti-Black legislation that built on poor law principles. For instance, the same officials—overseers of the poor—were charged with enforcing the anti-Black residency laws, as enforced the poor laws. Sometimes legislation even said, as was the case in an Ohio law, that free Black people would be treated as “in the case of paupers.”

For the many white northerners who supported anti-Black laws such as these, it made eminent sense to cast free Black people as outsiders not worthy of support or membership in the community. It didn’t matter how much money they had. What mattered was that white Midwesterners and others used the poor law framework to construct anti-Black policies. I argue in Until Justice Be Done that such laws had legitimacy and staying power in part because they built on an existing legal framework. Of course they also received broad support because white northerners, living in a society that had long sanctioned race-based slavery and the violent removal of Native people, were predisposed to see people who weren’t white as outsiders and inferiors.

From the early nineteenth century to the Civil War, states often changed their laws regarding Black Americans. Slave states increasingly elaborated their “slave codes,” which regulated all aspects of slavery. They also placed increasing restrictions on free Black people, particularly after Nat Turner’s Rebellion in 1831. In the free states, the story was a bit more mixed. Some free states never passed racist residency laws like those adopted by Midwestern states and later by California and Oregon. The Pennsylvania legislature considered such measures in the 1810s but didn’t pass them; Massachusetts rejected a push for them in the early 1820s. Yet both New York and Pennsylvania, which hadn’t had racial restrictions on men’s right to vote at the time of the American Revolution, moved to restrict Black men’s right to vote (as in New York) or to end it entirely (as in Pennsylvania). The movement for racial equality scored a major victory in 1849 when the state of Ohio repealed most of its Black laws after a long and coordinated push by activists. Around the same time, however, Illinois and Indiana moved in the opposite direction, doubling down by trying to ban Black migration completely.

Most of these fights occurred at the state level because the U.S. Constitution promised so little in the way of individual rights. The Constitution did, however, offer an intriguing clause in Article IV, section 2. Often called the “privileges and immunities clause,” it reads: “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” From the 1820s to the Civil War, people who wanted to secure safety and basic rights for free Black people often invoked this clause, which seemed to promise that people who were recognized as citizens of a state were “entitled” to certain things (“privileges and immunities”) in other states too. Indeed, its mention of “citizens in the several states” could even be read to imply a kind of national citizenship that transcended state lines, though it was hard to square such a reading with the clause’s clear reference to state citizenship. If readers today have a hard time making sense of the privileges and immunities clause, they are not alone! In early court cases, white men invoked the clause when arguing over the extent to which citizens of one state could expect to do business in a different state. For antebellum advocates of African Americans’ rights, the clause offered an opening to claim a right to move freely from state to state and to settle in new states. It offered the chance to argue that Black people whose home states recognized them as citizens should be recognized as citizens in any state to which they might travel or migrate. Such questions about race, rights, and mobility were highly relevant in a nation in which people moved frequently for economic opportunity. In a letter published in the Chicago Tribune in the summer of 1848, John Jones implicitly invoked the U.S. Constitution’s privileges and immunities clause in the course of arguing that some Black men, at least, should have the right to vote in Illinois: “What, think you, would your courts of justice do with a citizen of New York, if he should come to the city of Chicago to live, that is if his skin were of a dark cast? I think he would be entitled to all the privileges that our State could afford to any citizen of English ancestry.”

Black Americans such as John Jones actively participated in the antebellum movement for racial justice and engaged in the process of legal and constitutional contestation. This is something I wanted to emphasize in Until Justice Be Done: It wasn’t just elite white men who debated how to understand the U.S. Constitution, state constitutions, and statutes; and those conversations took place not just in courts but in popular fora like newspapers, petitions, and stump speeches.

JW: What did people mean when they talked about “civil rights” in the years between the Revolution and the Civil War? How were civil rights different from political rights? 

KM: Nineteenth-century Americans defined “civil rights” a bit differently from how most people talk about civil rights today. Today when people think of “the civil rights movement,” they often envision things like lunch counter sit-ins, marches for voting rights, and the landmark Civil Rights Act of 1964 and Voting Rights Act of 1965. In the nineteenth century, however, it was commonplace to separate “civil rights” from “political rights.” People envisioned civil rights as the most basic rights of personhood, including the rights to bodily safety, to personal liberty (often considered free mobility from place to place), to own property, and to sue and be sued, which is associated with owning property. Such rights also roughly correspond to the “life, liberty, and property” mentioned in many declarations of rights. Political rights, by contrast, were the rights to vote, hold office, and serve on juries. Such rights were considered less fundamental; most nineteenth-century Americans believed that not all free people, or all citizens, were entitled to enjoy political rights. Indeed, this was part of how they justified denying the vote to white women. Many considered white women citizens, but a less privileged kind of citizen than white men.

The distinction between civil rights and political rights is reflected in the Fourteenth and Fifteenth Amendments. Section 1 of the Fourteenth Amendment discusses who is a citizen, the privileges or immunities of citizenship, and the entitlement of all persons to equal protection and due process of law. This was understood as a civil rights measure. During debates in Congress, some legislators wanted it to include the right to vote as well. But the Republican leadership decided not to include in the amendment a provision requiring states to enfranchise Black men for fear that such a measure would not pass with the necessary two-thirds majority, or that if it did, it would be politically unpopular and cause Republicans to suffer in the upcoming midterm (1866) elections. After those elections, Congress returned and Republicans passed “political rights” measures: the Reconstruction Acts of 1867 and the Fifteenth Amendment, which Congress passed in 1869.

All along, some Americans disagreed with the prevailing strict separation between civil and political rights. For instance, some advocates of Black men’s voting rights insisted that citizenship for men should always include the right to vote. That is, there should be no male citizens who were denied political rights. Some advocates of women’s right to vote made a similar argument, insisting that all adult citizens should have the right to vote and that sex or gender should have nothing to do with it. That view on women’s right to vote did not prevail during Reconstruction, and it was only in 1920 that the U.S. adopted the Nineteenth Amendment, finally associating women’s citizenship status with the right to vote and, implicitly, to hold office.

JW: You write that the “struggle against racist laws was America’s first civil rights movement.” You then say that “we have often failed to see this movement because our focus was elsewhere.” Why have historians missed this story until now?

KM: This is an important question. First, I think people have generally been more interested in questions associated with slavery itself than with questions about race and equality, which can be even more difficult to grapple with. In the aftermath of Brown v. Board of Education, the eminent twentieth-century historian C. Vann Woodward wrote of the Civil War Era: “Equality was a far more revolutionary aim than freedom, though it may not have seemed so at first. . . . [S]lavery was property based on law. The law could be changed and the property expropriated. Not so inequality. Its entrenchments were deeper and subtler.” Woodward was saying slavery was decisively ended, whereas racial inequality was much harder to root out; he also seemed to imply that whereas people in the mid-twentieth century could look back on slavery as something safely consigned to the past, they were much more implicated—as our society still is today—in slavery’s difficult aftermath.

For historians and history teachers, questions about slavery are also very directly associated with one of the central questions in all of U.S. history: Why did the Civil War happen? As Lincoln said of slavery in his second inaugural address, “All knew that this interest was, somehow, the cause of the war.” Historians have endlessly discussed that “somehow,” offering varying theories on how exactly arguments over slavery helped bring about the sectional crisis and civil war. Scholars interested in social movements and radicalism mainly looked at abolitionists’ views on slavery (rather than on race and inequality in places where slavery had been abolished) as they argued over how much difference abolitionists had made. Were they a niche group of maladjusted weirdos (as many mid-twentieth-century scholars argued)? Were they intellectually important even if limited in their popularity? Were they more influential than traditionally recognized, because abolitionism also comprised what many have called the “political antislavery movement”? Historians have also delved into questions associated with slavery and the original Constitution. Should we characterize the Constitution as fundamentally proslavery or antislavery? How did people understand its relationship to slavery from the founding to the Civil War? All these questions associated with slavery are interesting and important. But they are also quite different from the question of how people conceived of a postslavery society, how they grappled with the structural inequalities and prejudices that slavery left in its wake, how they made legal and political claims, and what the Constitution had to do with any of that.

My point of entry into these questions was informed by having spent a lot of time writing about the Civil War and Reconstruction. I had thought a lot about how people in the 1860s and later envisioned a postslavery society. But I also thought we needed to consider these questions in light of what historians long before me called the “first emancipation,” when northern states abolished slavery. As abolition was occurring in those places, people were thinking about what a postslavery society should look like. While the issues that arose were not identical to issues in the post-Civil War South, the two periods (the “first” and “second” emancipations) shared quite a bit in common. Historian Willie Lee Rose wrote of the U.S. occupation of the Sea Islands of South Carolina during the Civil War as a “rehearsal” for Reconstruction; I thought of political conflicts over the rights of Black Americans in the antebellum North as another kind of rehearsal. Unlike the rehearsal described by Rose, which lasted just a few years, this one was more prolonged, unfolding over decades as northerners argued over whether to have a society that was more or less racially egalitarian.

JW: What surprised you most as you were researching this book?

KM: When I started working on the book, I had no idea how significant Black sailors were going to be, and I had no idea how much there would be to say about the U.S. Constitution’s privileges and immunities clause. On a research trip at the Massachusetts State Archives, I requested documents that were described as concerning the status of Massachusetts citizens. Nothing in the catalog or index I saw indicated that these records had to do with Black Americans, but I was curious what they were. It turned out they were petitions and reports associated with Black sailors who were arrested in southern ports, and residents of Massachusetts trying to do something about that, at a time when the federal government would almost certainly not intervene. It was the beginning of a thread that I began to pull on. I started to find references to the issue in many different places and was able to put together the disparate pieces of an important historical story that hadn’t really been told before.

JW: You’ve been writing about Lincoln for more than a decade, and he has figured in your books and articles in significant ways. Has your view of Lincoln changed at all?

KM: I continue to find Lincoln extremely interesting. He was smart and a terrific writer, great at expressing himself and at discussing very difficult issues. I’ve also found Lincoln a useful vehicle for thinking about other people and other issues. For instance, after writing my dissertation on emancipation and Reconstruction in Washington, I realized that in that moment, I probably knew more than anyone else about the five men who composed the famous 1862 delegation that met with Lincoln in the White House. And I knew that they were not newly emancipated from slavery, as historians then believed, but rather eminent free Black men, widely known to the white community of Washington. I thought that information could change how we understood the meeting with Lincoln and could also alter our understanding of the Black community of Washington, amidst which the Lincolns lived and worked. I was somewhat surprised, on venturing into this realm, to find that there hadn’t already been more research on the African Americans whom Lincoln knew and interacted with. I thought the topic was interesting and continued to pursue it, in part by writing about Black attendees at White House parties during the Lincoln administration, and in part by working on coordinating a new edition of the first book-length treatment of Lincoln and African Americans, John E. Washington’s They Knew Lincoln (1942). In Until Justice Be Done, I gave a lot of thought to Lincoln in the context of Illinois politics in the late 1850s and I got to know Stephen Douglas better than I had before. I enjoyed putting Lincoln and Douglas in conversation with a third person—H. Ford Douglas, a Black activist who was also in Illinois around that time—to illustrate a range of possible views on race, equality, and the Constitution as the 1850s ended. I would say that overall my view of Lincoln hasn’t changed much, but that my view of the world in which Lincoln lived has deepened quite a bit.

JW: After completing the book, you coordinated a significant collaborative project on Black history in Illinois. What can you tell us about that?

KM: Our web exhibit is called African Americans in Pre-Civil War Illinois: Creating Community, Demanding Justice. It looks at Black life and political organizing in Illinois, mainly from the 1840s to the 1860s, and includes profiles of twenty-five individual women and men. Check it out! You can find it easily by googling.

The project originated in a collaboration with the Colored Conventions Project (coloredconventions.org), a public humanities resource coordinated by a wonderful team at Penn State University. The Colored Conventions Project, which I recommend everyone explore, is an archive of nineteenth-century Black history, with emphasis on Black political organizing both before and after the Civil War. The project also hosts web exhibits that look at particular places and themes. I became a “North American Teaching Partner” with the project before the pandemic, with the goal of teaching a class at Northwestern that would combine history content with digital humanities work and would get started creating an online exhibit on a Black convention in Illinois. To make a long story short, I taught the seminar on zoom in spring 2020. Archives and libraries were of course closed. The class morphed into two summers’ worth of research teams composed of graduate students, undergraduates, and Northwestern IT and library staff, and we unveiled our web exhibit in the spring of 2022.

JW: I understand that you’ve created a graphic history of Reconstruction in the Washington, D.C., region that’s being published in fall 2024. How did that book come about?

KM: The book is called Freedom Was in Sight! A Graphic History of Reconstruction in the Washington, DC, Region, and it will be published by UNC Press this fall. The National Park Service commissioned the project with the idea that graphic histories can appeal to readers who might not have the patience or interest to read a  big book that’s all text. The illustrator, Liz Clarke, is a tremendous artist with extensive experience illustrating works of history. Lincoln makes an appearance! So do well-known figures like Frederick Douglass and Ida B. Wells, as well as many other less famous people whose stories are fascinating and representative of a period of immense change and intellectual ferment. I’m excited that the book represents Reconstruction as extending from the Civil War all the way to the end of the nineteenth century. Historians increasingly envision Reconstruction in this way, rather than using the traditional endpoint of 1877. So in addition to delivering a gorgeously illustrated history of an important place and time, I’m looking forward to bringing this more sweeping vision of Reconstruction to a broad audience.

JW: Thank you so much for joining us!