Thomas, J., concurring in judgement
labor.” E. Foner, Reconstruction: America’s Unfinished Revolution 1863–1877, p. 199 (1988). Under the Codes, “the state would enforce labor agreements and plantation discipline, punish those who refused to contract, and prevent whites from competing among themselves for black workers.” Ibid. The Codes also included “ ‘antienticement’ measures punishing anyone offering higher wages to an employee already under contract.” Id., at 200.
The 39th Congress focused on these abuses during its debates over the Fourteenth Amendment, the Civil Rights Act of 1866, and the Freedmen’s Bureau Act. During those well-publicized debates, Members of Congress consistently highlighted and lamented the “severe penalties” inflicted by the Black Codes and similar measures, Cong. Globe, 39th Cong., 1st Sess., 474 (1866) (Sen. Trumbull), suggesting that the prohibition on excessive fines was understood to be a basic right of citizenship.
For example, under Mississippi law, adult “freedmen, free negroes and mulattoes” “without lawful employment” faced $50 in fines and 10 days’ imprisonment for vagrancy. Reports of Assistant Commissioners of Freedmen, and Synopsis of Laws on Persons of Color in Late Slave States, S. Exec. Doc. No. 6, 39th Cong., 2d Sess., §2, p. 192 (1867). Those convicted had five days to pay or they would be arrested and leased to “any person who will, for the shortest period of service, pay said fine and forfeiture and all costs.” §5, ibid. Members of Congress criticized such laws “for selling [black] men into slavery in punishment of crimes of the slightest magnitude.” Cong. Globe, 39th Cong., 1st Sess., 1123 (1866) (Rep. Cook); see id., at 1124 (“It is idle to say these men will be protected by the States”).
Similar examples abound. One congressman noted that Alabama’s “aristocratic and anti-republican laws, almost reenacting slavery, among other harsh inflictions impose… a fine of fifty dollars and six months’ imprisonment on
