Sotomayor, J., dissenting
1860–1880, p. 638 (1935); see J. Anderson, The Education of Blacks in the South 1860–1935, p. 7 (1988). Black Americans thus insisted, in the words of Frederick Douglass, “that in a country governed by the people, like ours, education of the youth of all classes is vital to its welfare, prosperity, and to its existence.” Address to the People of the United States (1883), in 4 P. Foner, The Life and Writings of Frederick Douglass 386 (1955). Black people’s yearning for freedom of thought, and for a more perfect Union with educational opportunity for all, played a crucial role during the Reconstruction era.
Yet emancipation marked the beginning, not the end, of that era. Abolition alone could not repair centuries of racial subjugation. Following the Thirteenth Amendment’s ratification, the Southern States replaced slavery with “a system of ‘laws which imposed upon [Black people] onerous disabilities and burdens, and curtailed their rights in the pursuit of life, liberty, and property to such an extent that their freedom was of little value.’ ” Regents of Univ. of Cal. v. Bakke, 438 U. S. 265, 390 (1978) (opinion of Marshall, J.) (quoting Slaughter-House Cases, 16 Wall. 36, 70 (1873)). Those so-called “Black Codes” discriminated against Black people on the basis of race, regardless of whether they had been previously enslaved. See, e.g., 1866 N. C. Sess. Laws pp. 99, 102.
Moreover, the criminal punishment exception in the Thirteenth Amendment facilitated the creation of a new system of forced labor in the South. Southern States expanded their criminal laws, which in turn “permitted involuntary servitude as a punishment” for convicted Black persons. D. Blackmon, Slavery by Another Name: The Re-Enslavement of Black Americans From the Civil War to World War II, pp. 7, 53 (2009) (Slavery by Another Name). States required, for example, that Black people “sign a labor contract to work for a white employer or face prosecution for vagrancy.” The Second Founding 48. State laws
