The Crow Still Flies High: Modern Iterations of Black Codes in the United States

The Mississippi Black Codes of 1865 — the first such Reconstruction-era predecessors of Jim Crow — all but paved the road for Southern states eager to circumvent the Emancipation Proclamation passed just two years earlier. Black Codes like Mississippi’s served to control newly freed Blacks now unchained by the shackles of slavery. Though these laws are over a century behind us, their legacy lives on in modern political and social realities that continue to dehumanize and disenfranchise the same people our government claimed to have set free. Current legislation may not explicitly bear the “Black Code” designation, but extant laws in the United States in no uncertain terms maintain oppressive racial hierarchies that relegate Black Americans to the very bottom of the proverbial well.

Whether designed to do so or not, these policies effectively served — and continue to serve, albeit in a different form — to reinforce White superiority at Black Americans’ expense. Here I examine three laws that, as many Black Codes intended to do, served “to regulate the labor, movements, and activities of the recently freed slaves.” I discuss these laws not because I believe them to be more important than others, but because I feel they have not received as much attention as the more rigorously examined trends of mass incarceration, criminalization of drug use, or inadequate access to education that so disproportionately affect Blacks in the United States today.

Library of Congress

No people will toil and sweat,” explains sociologist Edward Alsworth Ross, “to keep a class in idleness and luxury unless cajoled or compelled to do so.” The imposition of labor, particularly hard manual labor, as a means of social control is by no stretch of the imagination a recent phenomenon. Humans have exploited each other’s labor since the beginning of civilization as we know it. Even in ancient Greece, slavery as an institution was based primarily on racialized notions of superiority; it wasn’t until European merchants began bringing African captives to the New World, however, that this labor was widely commodified for economic gain. From chattel slavery to indentured servitude, from convict leasing to reliance on prison labor, Blacks in America have consistently been regarded as little more than a cheap, easily exploitable source of labor to prop up the dominant class, i.e., rich Whites.

In postbellum Mississippi, for example, judicial and law enforcement officers reserved the power to place unsupervised and unsupported Black minors into apprenticeships at the state’s will. The masters into whose hands these youths were placed had the virtually unbridled right “to inflict such moderate corporal chastisement as” the children’s own parents could — virtually unbridled because, although the same law provided that “in no case shall cruel or inhuman punishment be inflicted,” we know from earlier cases involving the corporal punishment of slaves and servants that such language was practically meaningless in the face of judges all too willing “to recognise the full dominion of the owner over the slave.” Unwavering in their desire to maintain existing racial hierarchies after the fall of slavery, White men in positions of power eagerly grasped at answers to the “ungrateful question” of whether owners could beat their slaves, reasoning that “[t]he power of the master must be absolute, to render the submission of the slave perfect.” Anything less than complete control, it was argued, would invite insurrection and threaten the status quo slaveowners had so carefully curated over the years.

Lamentably, little has changed. Opened in 1901 on an old cotton farm in Sunflower County, Mississippi State Penitentiary (“MSP”) is the state’s oldest correctional facility and currently houses approximately 2,000 offenders, constituting 9% of the state’s whole corrections population and 58% of its own capacity. MSP is an all-male prison whose inmates prop up local economies with over 100,000 hours of unpaid labor every year in partnership with the Mississippi Prison Industries Corporation (“MPIC”), a carceral “staffing group” that claims to “[l]ead[] offenders to a brighter future through job training and realistic work experiences.” Though only 38% of Mississippi’s population is Black, Black men make up 48% of the inmates behind bars at MSP who provide free manual labor in metal and textile factories.

Even in the middle of a public health crisis, prisons in North Carolina — more than half of whose incarcerated population in 2010 was Black — continued to farm out their inmates to local meat processing plants, construction sites, and factories despite the increased risk of contracting and spreading the deadly novel coronavirus. Forcing inmates to continue working at such a high cost shows how little regard prison administrators have for those in their keep, and perpetuates a history of treating Blacks as expendable sources of labor.

Nationwide data paint an equally dismal picture; in 2019, Blacks accounted for 17% each of service and production occupations, their largest representation in the Current Population Survey of that year. As job categories become more professionalized, the proportion of Blacks in those jobs decreases, resulting in a heavy concentration of Black employees in low-skill occupations and very few at the top. This increased presence in menial professions like healthcare support, protective services, and transportation, however, is not for lack of trying; the Bureau of Labor Statistics reports that Black educational attainment in the United States has been on a steady rise, with more than twice as many receiving Bachelor’s degrees and higher in 2016 than in 1992.

If higher educational attainment means better job prospects, why has Black labor force participation been steadily declining? Derrick Bell suggests that “‘degrees and fancy titles’” do nothing to protect those holding them from individual or institutional bias. “‘[T]he law works for the [White] Man most of the time,” Bell explains, “and only works for [Blacks] in the short run as a way of working for him in the long run.’” Regardless of whether they find themselves in the corner office or at corner bus stops, Black workers will always find themselves face to face with “capricious acts of discrimination” thinly veiled by “an atmosphere of racial neutrality and [the prevailing belief] that racism is a thing of the past.” Labor, whether manual or managerial, thus becomes a necessary evil and a potent source of social control for those in power: Blacks must choose between high educational expenses with relatively low income and low likelihood of being hired in the first place, and the job security but lack of physical safety that come with so-called essential occupations.

Before the Emancipation Proclamation, and even for some time after, Blacks were categorically prohibited from owning real property of any kind. State legislatures and judiciaries made every attempt to maintain these restrictions, but such efforts were insufficient against private land conveyances from White masters to newly freed Black slaves. Over the years these restrictions have been loosened even further, but other policies continue to have discriminatory effects for Black property owners: because Blacks tend to have poorer employment opportunities than Whites they also face lower wages, resulting in smaller savings, fewer tax breaks, and, ultimately, lower rates of homeownership. Those who do own homes have higher levels of debt, fewer and less valuable assets, and significantly less wealth — which, though it is related to income, is not the same — than their White counterparts.

Perhaps more damning than these drastic differences in homeownership rates, however, is the absence of an even more valuable asset: Whiteness. As intangible and tenuous as it is, Whiteness — or the lack thereof — nevertheless undergirds even the slightest of racial disparities that permeate modern existence for Blacks in America. Critical theorists have long argued that race is a social construction, holding that “dominant society racializes different minority groups at different times” according to shifting social and economic needs. These constructions result in a contrived binary between Blacks and Whites, pitting one against the other and creating an artificial duality in which one end of the spectrum represents possession of some ethereal quality while the other end represents its absence — Whiteness is the norm while Blackness is aberrant. Whiteness thereby becomes an ephemeral and ultimately unattainable quality for minorities to strive for in a fruitless attempt to achieve a higher social status.

The conceptualization of Whiteness as a form of property emerged from the racialized social dynamics of American slavery; while not all Africans in the United States were slaves, no slave was White, and the status of being someone else’s property prevented those slaves from having any property of their own. Because only Whites could own property, their Whiteness became conflated with it — race “became a line of protection and demarcation from the potential threat of commodification. . . . White identity and whiteness were sources of privilege and protection; their absence meant being the object of property.”

A lasting vestige of Black Codes preventing racial minorities from marrying Whites, twentieth-century miscegenation laws and the landmark decisions that arose from them forced American courts and couples to reconsider this “black-white binary” when confronted with the proposition that racism could only be eradicated through the elimination of race. People like Joe Kirby willingly married spouses of color, then fought tooth and nail for a legal recognition that they themselves possessed the elusive quality of “Whiteness” that their partners allegedly lacked, rendering those same unions void under statutes forbidding interracial marriages. In doing so, they effectively admitted to having broken those laws: if they were indeed White, their marriages were illegal the moment they were consecrated.

Contradictory though such suits may seem, a judicial declaration of a plaintiff’s Whiteness was apparently much more valuable than those admissions of guilt, as cases like Kirby demonstrate. The virtual equivalent of power in a world that trades in social capital, Whiteness as property serves to bestow upon those who possess it not only the ability to own other real property — a luxury that Blacks have historically been denied — but something much more precious and otherwise unattainable: “all of those human rights, liberties, powers, and immunities that are important for human well-being” Whether it is the right to own a home or to be recognized as a human being worthy of the same liberties and protections as others, Black folks in America have consistently been deprived of what has long been considered one of the most fundamental characteristics of the American Dream.

Exacerbated by the double-edged sword of requiring free Blacks to have lawful homes while simultaneously preventing them from acquiring and owning property, early vagrancy laws laid the groundwork for modern anti-homeless and anti-loitering policies that, like so many others, have a disproportionately negative impact on Blacks. Mississippi’s Black Codes included in their definition of vagrancy a host of otherwise ordinary behaviors like juggling, overspending one’s income, and mere idleness. As was the case with interracial marriage, Whites were not entirely safe from vagrancy laws; any White person who was found “assembling with freedmen, free Negroes, or mulattoes” who engaged in such behaviors would also be deemed vagrant and accordingly fined; they would not, however, be punished for committing those acts themselves. First appearing in the 1500s and surviving well into the twentieth century, vagrancy laws thus served as much more than a means of upholding the public order — they were used to control anyone who dared “move ‘out of place’ socially, culturally, politically, racially, sexually, economically, or spatially.”

Though it may seem that nobody was truly safe from such expansive notions of vagrancy, these laws — like so many others — nevertheless had a disproportionate impact on Blacks, particularly young Black men. In much earlier attempts to justify the enslavement of Africans in the first place, White European settlers painted an animalistic picture that portrayed Blacks as “‘beastly . . . utterly destitute of the use of reason, of dexterities of wit, and of all arts.’” By the time Mississippi’s Black Codes came about, the hypersexual, hypercriminal Black man was a staple narrative; having already established Blacks’ inferiority, it was convenient for power-wielding Whites to justify vagrancy laws by pointing to the “‘criminalblackman’” as proof of those laws’ necessity.

The scapegoating did not stop there; today, stories of young Black men targeted by law enforcement for no other reason than being in the wrong place at the wrong time are an all too familiar trope in American media. In July 2014, forty-three-year-old Eric Garner was stopped by New York City police officers after breaking up a fight on a nearby street corner. The officers accused Garner, a Black man with a resonant voice and imposing physical presence, of illegally selling untaxed cigarettes despite the fact that he had nothing on his person at the time. One of the officers placed Garner in an illegal chokehold that ultimately killed him, sparking protests across the country and fueling the fire of the Black Lives Matter movement formed just a year earlier after the death of seventeen-year-old Trayvon Martin.

The criminalization of casual existence for Black men is the direct descendant of vagrancy laws like Mississippi’s: “Where most American laws required people to do something criminal before they could be arrested,” explains Risa Goluboff, “vagrancy laws made it criminal simply to be a certain type of person” — in most cases, that “certain type” was Black.

Vagrancy has evolved from a crime of moral deficiency to one of “being black and seeming out of place,” urging a critical examination of commonly held notions of criminality. While modern laws no longer explicitly forbid Blacks from participating in certain activities, the court of public opinion is a powerful vehicle for enforcement. A recent wave of White women calling the police to report Black folks for engaging in harmless behaviors in public places has raised alarms about racial profiling in the wrong hands. Granting them monikers like “BBQ Becky” and “Permit Patty,” these women’s critics note the racialized double standard permeating their self-proclaimed concerns for public safety: Black passersby hesitate to draw attention to suspicious behaviors for fear of escalating the situation, but White people have no qualms with getting the police involved.

Calls like these create uncomfortable and volatile situations for everyone. Emergency dispatchers are liable for any damages that result from them not sending first responders, while the Black folks being reported are left to wonder if they will even live through these encounters — complacency changes nothing, but fighting back could be lethal. Faced with an impossible choice between remaining silent and possibly ending up like Eric Garner, “‘black people minding their own business’” must continue to navigate a hostile social climate that promises them all the benefits of freedom but time and again fails to deliver.

There are those who choose to believe that we now live in a post-racial society, an “era of colorblindness” in which “it is no longer socially permissible to use race as an explicit justification for discrimination, exclusion, and social contempt”; that Black Codes are but remnants of distant history, and our country moves ever forward with the benefit of hindsight guiding us. This is not so. Certainly, we have abolished those laws that explicitly use race as the basis for discriminatory practices, but the elephant of implicit bias lingers. From the Reconstruction Era of the mid-nineteenth century to today, the United States’ legal system upholds arbitrary distinctions between socially constructed racial categories by manipulating legislation to shape social conditions, and until White folks are willing to acknowledge the irreparable damage we have done, to “banish the ugly blemish of racism scarring the image of America,” colorblindness is but a distant dream.

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