A while back Gene Healy wrote an outstanding article on LRC in which he debated the Cato Institute’s Roger Pilon on the 14th Amendment. Pilon and his Cato colleagues are “libertarian centralizers,” in that they believe (against centuries of evidence) that a stronger federal government, through enhanced judicial powers, can somehow expand, and not diminish, freedom. Thus, they champion broader use of 14th Amendment jurisprudence in the hope that federal judges will someday become libertarians. (Honest, I’m not making this up; read them for yourself).

One of Pilon’s arguments, which is always made by libertarian centralizers, is that the 14th Amendment (which was never legally ratified) was necessary to protect the ex-slaves from the notorious Black Codes that were supposedly being imposed by the defeated southerners who wanted to reinstitute de facto slavery.

But this is all wrong. Black Codes existed throughout the North for decades before the war, for one thing. And more importantly, as C. Vann Woodward wrote in The Strange Career of Jim Crow, published in 1955 by Oxford University Press, once a military dictatorship was established in the South after the war, and the state governments were controlled by the Republican Party:

“[T]he provisional legislatures established by President [Andrew] Johnson in 1865 adopted the notorious Black Codes. Some of them were intended to establish systems of peonage or apprenticeship resembling slavery.”

So the same federal government (i.e., the Republican Party, which was the federal government) that created the Black Codes, modelled after their Northern predecessors, supposedly enforced the 14th Amerndment to negate the very same Black Codes that it had just created!

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