Printer Friendly

The origins of civil rights in America.

B. United States v. Reese

In 1876, the Supreme Court reviewed Bradley's decision in Cruikshank and a companion case where officials in Lexington, Kentucky, had refused to count the vote of an African American, also retaining the concept of state neglect, as well as insisting that federal prosecutions under the Fifteenth Amendment or the Civil Rights Act of 1866 could only be brought if a racial motive was asserted. The companion case, United States v. Reese, (110) has, like Cruikshank, been treated as evidence of the Court's hostility to Reconstruction because "state action" was clearly involved and the Court dismissed the indictment. (111)

But Reese, like Cruikshank, was based on the Court's understanding that racial animus was required where the federal government was seeking to penalize violations of Fifteenth Amendment voting rights. In Cruikshank no racial animus had been shown. In Reese it could be presumed because the prospective voter was black, but an 1874 codification of the Enforcement Act of 1870, on which the federal prosecution was based, had failed to include language prohibiting only those denials of voting made "on account of race, color, or previous condition of servitude." (112) The sections under which the defendants in Reese had been indicted were thus unconstitutionally broad.

Two passages in Chief Justice Morrison Waite's opinion for the Court in Reese demonstrated that the Court had entertained each of Bradley's suggestions for the federal enforcement of voting rights. (113) One, referring to the failure of the indictment in Reese to allege racial animus, stated, "It is only when the wrongful refusal at such an election is because of race, color, or previous condition of servitude, that Congress can interfere, and provide for its punishment." (114) Although the passage was chiefly directed toward disposing of the indictment, it contained all of the elements of the Court's jurisprudence of federal voting rights cases in the South. The "right" at stake was that of not having one's voting rights in a municipal election discriminated against on the basis of race, a Fifteenth Amendment right. Federal intervention was triggered by the "wrongful" refusal of access to voting. That refusal could be the result of the action of state officials (as in Reese) or private individuals (as in Cruikshank). It also could be the result of inaction on the part of state officials: state neglect. Neither official action nor intentional conduct was necessary to trigger federal intervention.

In addition, Waite said that "[t]he effect of art. 1, sect. 4, of the Constitution, in respect to election for senators and representatives, is not now under consideration." (115) That provision would play a role in the Court's subsequent voting rights cases. It was not relevant in Reese because that case involved a municipal election, and the article pertained to national elections. (116) But the Clause gave Congress the power to make "regulations" for those elections, including the "manner" of holding them, and it did not require a showing of racial animus to be enforced. So it appeared to be a basis for the positioning of federal officials to uphold African American voting rights in the South.

Two months before the 1876 presidential election, Attorney General Alphonso Taft issued a circular deploying Federal Marshals to several Southern states to enforce "the peace of the United States" in federal elections. He based his authority on Article I, Section 4, and noted that in the Reese case the Court had indicated that it was not considering that provision. Reese, Taft said, "arose upon an election of State officers, only, and this order relates to the election of Federal officers, only." (117)

The above actions by the Court and the Grant administration demonstrate that without knowing the doctrinal setting of Court decisions in the years immediately following the passage of the Civil Rights Act of 1866 and the Fourteenth and Fifteenth Amendments, it is easy to gain a false impression of those decisions. Distinctions such as that between secured and created rights, or between ordinary crimes and the actions specially sanctioned by the Fourteenth and Fifteenth Amendments, were crucial for Justices who wanted to acknowledge the federal government's power to enforce the Amendments' provisions but did not want to radically disturb antebellum understandings of the relationship between state and federal powers.

The differential treatment of violations of voting rights in state and federal elections captured those concerns. Where state elections were concerned, as in Cruikshank and Reese, the power of the federal government to oversee the conduct of state officials and private individuals was limited to actions motivated by racial animus (or by the disinclination of state officials to correct private actions of that sort). To allow the federal government to enforce voting rights without evidence that those rights had been restricted because of racial animus was to invite undue interference with state prerogatives. But no such concern was present in federal elections. Here, the rights were created rights, which extended to all voters, so the federal government's supervisory power need not be limited to instances of racial discrimination. Stationing federal marshals in Southern states to regulate the process of federal elections was not an unwarranted extension of federal power. (118)

C. Federal Voting Rights Cases, 1877-1884

Brandwein has also shown that three cases decided between 1877 and 1884 can be seen as illustrating the continuing vitality, in those years, of the doctrinal guideposts first introduced by Bradley in his circuit court opinion in Cruikshank. (119) The first decision was a circuit opinion by Waite in United States v. Butler. (120) In September 1876, members of "rifle clubs" in Aiken County, South Carolina, sought to intimidate African Americans from participating in forthcoming elections by besieging and shooting them. In a riot near the town of Ellenton, many African Americans were killed, and some retaliated by killing whites. Federal troops were dispatched to the area, and twelve rifle club members were arrested, including Andrew Pickens Butler, a former colonel in the Confederate army.

The federal government, pursuing the lines laid out in Taft's circular, brought an indictment against Butler and the others based on two theories. One was under Article I, Section 4; the other under the Fifteenth Amendment and the Enforcement Act of 1870. In his charge to the jury, Waite followed the Cruikshank rules for federal enforcement of civil rights. For the three counts under Article I, Section 4, Waite made it clear that the federal government had a general power to police federal elections and that no racial animus on the part of those interfering with them needed to be shown. For the two counts under the Fifteenth Amendment, Waite concluded that the "controlling element" to make out a successful indictment was a showing that those indicted had conspired to deprive African Americans of the opportunity to vote on the basis of their race. (121)

In the second case, Ex parte Siebold, (122) the Supreme Court relied on Article I, Section 4 to secure the convictions of five Maryland election officials who stuffed ballot boxes and allowed others to be destroyed in a national election. They were charged under election laws that called for the prosecution of state officials who refused to perform duties in national elections or interfered with the duties of federal officials. They sought a writ of habeas corpus after being imprisoned on the ground that keeping the peace was a duty reserved for state officials. The Court, in an opinion written by Bradley, held that the federal government had a power to police national elections and could compel state officials to assist federal officials in that task. The election laws sanctioning state officials for not cooperating in the policing of federal elections were valid implementations of the Times, Places, and Manner Clause of Article I, Section 4. (123)

The third case, Ex parte Yarbrough, (124) involved another effort to interfere with voting by African Americans in a federal election. Five members of the Klu Klux Klan beat a Georgia black voter. Indictments were brought under the Fifteenth Amendment and Article I, Section 4. A unanimous Supreme Court upheld the indictments against arguments that state action was necessary to convict under the Fifteenth Amendment and that the right to vote for a member of Congress was governed by state law. Justice Miller explained the Court's rationale:

   The reference to cases in this court in which the power of congress
   under the first section of the fourteenth amendment has been held
   to relate alone to acts done under state authority can afford
   petitioners no aid in the present case.... [A]cts which are mere
   invasions of private rights [and] have no sanction in the statutes
   of a state, or ... are not committed by any one exercising its
   authority, are [normally] not within the scope of that amendment,
   [but] it is quite a different matter when congress undertakes to
   protect the citizen in the exercise of rights conferred by the
   constitution of the United States.... (125)


Violations of "secured" rights thus required state action under the Fourteenth and Fifteenth Amendments, but not violations of "conferred" rights, and, as Miller explained, by protecting African Americans against discrimination in voting "whenever the right to vote may be granted to others," the Fifteenth Amendment "substantially conferred] on the negro the right to vote, and Congress has the power to protect and enforce that right." (126) Moreover, the right to vote for a member of Congress was not dependent on state law, as in the case of voting rights generally. It was "created by the Constitution," and thus the federal government had plenary power to endorse it. (127)

Brandwein's readings of the above decisions suggest that the Supreme Court's constitutional jurisprudence in "civil rights" cases had crystallized around three propositions between the early 1870s and the mid-1880s. First, the passage of the Civil Rights Act of 1866 had left the antebellum category of "natural" or "secured" rights essentially undisturbed, and the definition of those rights continued to be a matter of state law. Second, however, the Civil Rights Act of 1866 and the Fourteenth and Fifteenth Amendments, taken together, prohibited states, and in some instances private individuals, from restricting rights conferred by the Constitution, the foremost example of which was the right of all citizens to vote in federal elections. Third, some cases had suggested that the federal government had power to enforce the "secured" rights of individuals if states neglected to enforce them.

The context in which those propositions had been formulated had typically been that of efforts on the part of African Americans to vote in state or federal elections. With respect to state elections, interference with those efforts, such as assaults on prospective African American voters, required racial animus, and voting in state elections was designated a "secured" right, one that could be restricted by state law. With respect to federal elections, voting rights were placed in a different category. They were designated "conferred" rights, constitutionally created civil rights whose enforcement was not dependent on state law or on the actions of state officials. Most prominent among those was the right not to have one's opportunity to vote in federal elections restricted on the basis of race. The right of African Americans to vote in federal elections could be enforced by the federal government either under the Fifteenth Amendment or under the Times, Places, and Manner Clause of Article I, Section 4.

Finally, systematic failure on the part of state authorities to enforce the right of African Americans to vote in state elections could result in intervention by the federal government to protect that right. If, for example, private individuals sought to harass or intimidate African American voters in state elections, and state authorities took no action to prevent that conduct, their neglect could amount to sufficient "state action" to trigger the enforcement provisions of the Fourteenth and Fifteenth Amendments.

The endorsement of those propositions by the Supreme Court in the two decades following the Civil War suggests that the conventional view of the Court as contributing to a retreat from the initial goals of Reconstruction needs modification. The conventional view characterizes the Court as abandoning the egalitarian promise of Reconstruction in two respects: by allowing violent reprisals against African Americans in Southern states to go unpunished unless explicit racial animus was shown, and by declining to interpret the Fourteenth and Fifteenth Amendments as charters for new federal civil rights. (128)

Brandwein's analysis of voting rights cases in the 1870s and 1880s reveals that the conventional view is misplaced. (129) First, the Court signaled that where state authorities had neglected to enforce the civil rights of individuals, federal authorities could step in to enforce those rights. Second, the Court distinguished between civil rights that were "secured" and those that had been "conferred" or "created" by the Constitution, and indicated that neither states nor private individuals could infringe on the latter set of rights. Thus in one group of cases, where states allegedly restricted the opportunities of blacks to sue in the courts, or own property, it was necessary to show an institutional pattern of failure to allow the enjoyment of those rights for federal enforcement to take place; in another, where states or private individuals allegedly interfered with the efforts of blacks to vote in federal elections, nothing but an interference needed to be shown. (130)

From the perspective of federalism, the Court's approach to civil rights cases did not represent the abdication of federal enforcement suggested by the conventional view. Although, as we will see, the Court treated the Fourteenth and Fifteenth Amendments as only creating a limited number of federal civil rights, it treated the federal government both as an overseer of state governments with respect to the accommodation of "secured" civil rights and as an enforcer of "created" federal civil rights. In those capacities, the federal government could be expected to encroach into state sovereignty.

D. "Civil Rights" and the Slaughter-House and Civil Rights Cases

How might the Court's two most prominent decisions interpreting Reconstruction enactments, the Slaughter-House Cases (131) (1873) and the Civil Rights Cases (132) (1883), be understood once attention has been drawn to the distinction between "secured" and "created" civil rights, to the race-based character of the "created" rights category, and to the overlapping treatment of intentional and negligent state infringements on rights? The conventional view of both decisions is that their majority opinions contributed to the demise of the egalitarian ideals of Reconstruction and encouraged the reemergence of white supremacist governments in former Confederate states. (133) When language in those opinions is matched up with language in earlier cases, however, the opinions can be seen as retaining, rather than transforming, the distinctive, and ambivalent, vocabulary of "civil rights" as the category evolved out of antebellum jurisprudence. (134)

1. The Slaughter-House Cases

Recent scholarship on the Slaughter-House Cases has corrected one historiographical stereotype: that the Louisiana legislation challenged in the cases, which granted an exclusive franchise to the Crescent City Live-Stock Landing and Slaughtering Company, created a monopoly and was passed by a corrupt legislature. In fact, the company granted the franchise was required to allow all butchers to use its facilities and subjected to fines if it did not do so. The rationale for creating an exclusive franchise was to make the business of slaughtering animals less of a public health hazard by ensuring that slaughtering would take place in one facility that could be regularly inspected. Although the butchers who challenged the legislation invoked anti-monopoly and anti-corruption rhetoric, the invocations were disingenuous. The butchers had a virtual monopoly of the slaughtering trade prior to the legislation's passage and had collectively ignored health regulations and inflated the prices of meat. Louisiana had a tradition of legislative corruption, and support of the butchers' arguments by white residents of New Orleans was more of a protest against the fact that the Louisiana legislature included black representatives than a concern about it being corrupt. Other cities had regulated the slaughtering trade by invoking the police power of states and municipalities to promote public health. (135)

That same scholarship has remained wedded, however, to another stereotype about the Slaughter-House Cases: that Justice Samuel Miller's majority opinion began the post-Civil War judicial abandonment of African Americans by construing the privileges or immunities and equal protection clauses of the Fourteenth Amendment narrowly. (136) If, however, one reads Miller's opinion against the backdrop of antebellum conceptions of citizenship, Miller's private correspondence, and the cases previously discussed, it is clear that although he did undertake a narrow reading of the clauses, he did so in part because he anticipated that an effect of the Fourteenth Amendment might be to impose a new set of restrictions on the ability of states to define the scope of "civil rights." (137) Moreover, Miller did not find a narrow reading of the clauses incompatible with judicial protection of the civil rights of black residents of southern states.

The key to understanding Miller's construction of the Reconstruction Amendments in the Slaughter-House Cases is to recognize that he retained antebellum conceptions of "civil rights" and accompanying antebellum assumptions about federalism. His conclusion that the Thirteenth, Fourteenth, and Fifteenth Amendments, taken together, had "one pervading purpose ... lying at the foundation of each ... the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly-made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him," (138) was the same conclusion that Bradley, Waite, and he would derive in Cruikshank, Reese, and federal voting rights cases. Racial animus was necessary to make out a Thirteenth, Fourteenth, or Fifteenth Amendment violation because the protection of African Americans lay behind each of those Amendments. (139)

Hence the Fourteenth Amendment, Miller maintained, evolved out of a recognition that even after the abolition of slavery "the condition of the slave race" in former slave states "would, without further protection of the federal government, be almost as bad as it was before" because "[a]mong the first acts of legislation" in those states "were laws which ... curtailed [the rights of freed slaves] in the pursuit of life, liberty, and property to such an extent that their freedom was of little value ...," (140) Miller particularized:

   They were in some States forbidden to appear in the towns in
   any other character than menial servants. They were required to
   reside on and cultivate the soil without the right to purchase or
   own it. They were excluded from many occupations of gain, and
   were not permitted to give testimony in the courts in any case
   where a white man was a party. It was said that their lives were
   at the mercy of bad men, either because the laws for their
   protection were insufficient or were not enforced. (141)


Further, the Fifteenth Amendment was the product of a recognition by "the thoughtful men who had been the authors of the other two amendments" that those "were inadequate for the protection of life, liberty, and property, without which freedom to the slave was no boon." (142) This was because former slaves "were in all those States denied the right of suffrage. The laws were administered by the white man alone." (143) Hence, "[t]he negro having, by the [Fourteenth [A]mendment, been declared to be a citizen of the United States," was "made a voter in every state of the Union" (144) by the Fifteenth Amendment.

Note that the same implicit understandings about civil rights and the indifference of former slave states to their exercise by African Americans that we have observed in Cruikshank, Reese, and the voting rights cases appear in Miller's Slaughter-House opinion. Although pursuing a calling, owning property, or giving testimony in the courts were examples of antebellum "secured" or "natural" rights, they were rights connected with state citizenship. Once slaves were freed by the Thirteenth Amendment, states still had no obligation to treat them as citizens, and Miller's list of practices suggested that many did not. (145) The declaration in the Fourteenth Amendment that freed slaves were citizens of states was designed to deal with those practices. But African Americans continued to be disenfranchised in former slave states, which meant that their life, liberty, and property could still be curtailed. Hence the enactment of the Fifteenth Amendment, which created a civil right not to have one's ability to vote restricted on the basis of race. (146) The Fifteenth Amendment could be enforced by the federal government if states declined to uphold the right to vote.

Miller thus seems to have anticipated that the principal role of the federal government as an enforcer of violations of civil rights in the states would come in the area of voting rights. Outside that area, it was necessary to show that a state actor had deprived a citizen of a civil right, either by intentional conduct or negligent conduct (as where state laws were "insufficient" or "not enforced"). One illustration of this role was when states declined to allow African Americans to own property or to give testimony in court. In such instances, Miller anticipated the Fourteenth Amendment's Equal Protection Clause coming into play. Indeed, he thought that to be the primary purpose of the Clause. "The existence of laws in the States where the newly emancipated negroes resided, which discriminated with gross injustice and hardship against them as a class," he wrote in his Slaughter-House opinion, "was the evil to be remedied by this clause...," (147) So " [i]f ... the States did not conform their laws to its requirements," the federal government could intervene under Section 5 of the Fourteenth Amendment. (148)

Miller's discussion of the Equal Protection Clause in the Slaughter-House Cases has typically been singled out for its purportedly narrow interpretation of that clause, with emphasis on his comment that "[w]e doubt very much whether any action of a State not directed by way of discrimination against the negroes as a class, or on account of their race, will ever be held to come within the purview of this provision." (149) But for present purposes the important feature of Miller's discussion of the Equal Protection Clause is that he viewed it as a measure designed to give the federal government corrective power when the rights of state citizens were discriminated against by states on the basis of race. Under this reading, the Equal Protection Clause was not safeguarding the rights of national citizens, nor was it a basis for federal intervention in most instances where a state curtailed "natural" or "secured" rights. If a state, for example, restricted the opportunities of women or male non-freeholders to vote in state or local elections, that was not a violation of the Equal Protection Clause. Only when a state allowed some opportunities to its white citizens and denied them to its black citizens could the Clause come into play. (150)

The above reading of Miller's view of the Equal Protection Clause seems consistent with two other features of his Slaughter-House opinion, both of which have figured prominently in the conventional account of the opinion as beginning a judicial retreat from the egalitarian vision of Reconstruction. The first feature is Miller's narrow construction of the "privileges or immunities of citizens of the United States" under the Fourteenth Amendment. The second, and related, feature is Miller's claim that the Reconstruction Amendments were not designed "to transfer the security and protection of all ... civil rights ... from the States to the federal government," and therefore "to bring within the [enforcement] power of Congress the entire domain of civil rights heretofore belonging exclusively to the States." (151)

In the cases decided between 1874 and 1884, previously discussed, we have seen that Justices on the Waite Court distinguished between classes of what were coming to be generically called civil rights: "natural" or "secured" rights, "created" or "conferred" rights. (152) The latter category was small, restricted to rights that were enacted in provisions of constitutional amendments, such as the Fifteenth Amendment's right not to have one's ability to vote restricted on the basis of race. Most of the "civil rights" described in the Civil Rights Act of 1866, and most of the "privileges and immunities" identified by Washington in Corfield, were "natural" or "secured" rights. That class of rights was associated with state, not national citizenship, and was subject to, as Washington put it, "such restraints as the government may justly prescribe for the general good of the whole." (153)

When one superimposes a map of federal and state power onto this categorization of "civil rights," it becomes clear that one of the major considerations for judges interpreting the Reconstruction Amendments was how far those amendments had expanded the class of "created" or "conferred" rights by including provisions abolishing slavery or involuntary servitude, or alluding to the "privileges or immunities of citizens of the United States," to "due process of law," to "the equal protection of the laws," and to "the right of citizens of the United States to vote." According to the Waite Court's typology of "civil rights," if any of those provisions "created" or "conferred" a new civil right, that right was national in character, and could be enforced by the federal government against states. (154)

So if the "privileges or immunities of citizens of the United States" were going to be treated as the federal equivalent of Washington's list of "privileges and immunities" enjoyed by state citizens, then when a state "abridged" the making of contracts, or the pursuit of an occupation, or access to the courts, or freedom from physical attack or punishment, the federal government could enforce those "privileges" or "immunities" against the state in question. Similarly, if "due process of law" meant the opportunity to pursue economic activity free from governmental restraints, or if "equal protection of the laws" meant a new federal civil right not to be treated unequally in the economic marketplace, those were "created" civil rights, as capable as being enforced against willful or negligent states as the right not to have one's ability to vote restricted on the basis of race.

That was why Miller resolved to make it clear that unless the antebellum map of civil rights federalism were retained, momentous consequences would follow. As he put it,

   [T]he entire domain of the privileges and immunities of citizens
   of the States [previously] lay within the constitutional and
   legislative power of the States, and without that of the Federal
   government. Was it the purpose of the fourteenth amendment,
   by the simple declaration that no State shall make or enforce
   any law which shall abridge the privileges and immunities of
   citizens of the United States, to transfer the security and
   protection of all ... civil rights ... from the States to the
   Federal government? And where it is declared that Congress
   shall have the power to enforce that article, was it intended to
   bring within the power of Congress the entire domain of civil
   rights heretofore belonging exclusively to the States?

   ... [S]uch a construction ... would constitute this court a
   perpetual censor upon all legislation of the States, on the civil
   rights of their own citizens.... [T]he effect is to fetter and
   degrade the State governments by subjecting them to the
   control of Congress, in the exercise of powers heretofore
   universally conceded to them ... it radically changes the whole
   theory of the relations of the State and Federal governments to
   each other.... (155)


Thus, a minimalist interpretation of the "privileges or immunities of citizens of the United States" was necessary, Miller believed, to prevent the derivation and enforcement of "civil rights" from becoming the exclusive province of the federal courts and the federal government. He also advanced a minimalist interpretation of the Fourteenth Amendment's Due Process Clause, dismissing the claim that the Louisiana statute deprived the butchers of their property by restraining their trade as supported by "no construction of that provision that we have ever seen, or any that we deem admissible...." (156)

That left the Equal Protection Clause. If one recalls the allusions to "state neglect" that surfaced in Waite Court decisions after the Slaughter-House Cases, it is possible that Miller thought of the Equal Protection Clause and Section 5 of the Fourteenth Amendment as giving the federal courts or Congress power to step in when states declined to enforce the "secured" civil rights of their African American citizens, such as by denying them the opportunity to hold property or sue in court.

Two passages in Miller's Slaughter-House opinion seem consistent with that interpretation. In one, he noted that "[i]f ... States did not conform their laws to [the] requirements [of the Equal Protection Clause], then by the fifth section of the article of amendment Congress was authorized to enforce it by suitable legislation." (157) In the other, speaking of the racial thrust of the Equal Protection Clause, he said, "[W]e may safely leave that matter until ... some case of State oppression, by denial of equal justice in its courts, shall have claimed a decision at our hands." (158) The passages suggest that in instances in which states declined to afford black citizens the same "natural" or "secured" rights they afforded to white citizens, the Equal Protection Clause could serve as a mandate for federal intervention. (159)

In short, the Slaughter-House Cases seem consistent with the subsequent circuit court and Supreme Court decisions previously discussed with regard to three issues: the uncertain, limited status of federal "civil rights" after the Reconstruction Amendments; the enduring power of the antebellum map of federal and state powers, with its emphasis on the primacy of states in defining and limiting the civil rights of their citizens; but at the same time a growing awareness by Justices on the Waite Court that Southern states were systematically denying African Americans opportunities to exercise their secured rights, and a corresponding awareness that the federal government could step in, under provisions of the Reconstruction Amendments, to enforce those opportunities. (160)

2. The Civil Rights Cases

In the conventional historiography of Reconstruction, the Civil Rights Cases are treated as perhaps the strongest evidence that the Waite Court had abandoned black freedmen to the white supremacists that had reemerged in Southern legislatures. (161) The cases invalidated the Civil Rights Act of 1875. (162) That legislation was initially designed to prevent states, and in one instance private enterprises, from discriminating on the basis of race in public schools; the selection of juries; and public accommodations, which included inns, forms of public transportation; and places of public amusement, such as theaters and concerts. (163) Although the public accommodations provision extended to enterprises operated by private individuals, such enterprises were taken to be open to members of the public generally, so the line between state and private action did not seem significant. By the time the Act was passed by a lame-duck session of Congress in early 1875, the public schools provision had been dropped. (164) The other two provisions were immediately challenged on constitutional grounds.

Securing broad protection against racial discrimination in public accommodations had been part of the agenda of some Republicans in Congress since the conclusion of the Civil War. Initially, legislation providing such protection was thought to rest on the Privileges or Immunities Clause of the Fourteenth Amendment, but after the Slaughter-House majority opinion's limited reading of that clause, such a rationale appeared problematic. (165) Attention then turned to two other sources of protection: the Thirteenth Amendment (166) and the Fourteenth Amendment's Equal Protection Clause. (167) The first basis had the advantage of being applicable to private individuals as well as states, but it required that equal access to public accommodations for blacks be thought of as a way of preventing the perpetuation of the "badges and incidents of slavery." The second basis was consistent with a view of the Equal Protection Clause as directed at state-sanctioned racial discrimination, but it required that private activity in the public accommodations area be regarded as state activity. (168)

In the Civil Rights Cases, Bradley's majority opinion would seize upon both of those difficulties. But his opinion was very likely affected by another concern about racial discrimination in public accommodations. In the course of an 1876 correspondence with Justice William Woods about whether the Civil Rights Act of 1875 was constitutional, Bradley wrote a memorandum with some thoughts on "Civil Rights." They included the following:

   Surely Congress cannot guaranty to the colored people admission to
   every place of gathering and amusement. To deprive white people of
   the right of choosing their own company would be to introduce
   another kind of slavery.... Surely a white lady cannot be enforced
   by Congressional enactment to admit colored persons to her ball or
   assembly or dinner party.

   It never can be endured that the white shall be compelled to lodge
   and eat and sit with the negro.... The antipathy of race cannot be
   crushed and annihilated by legal enactment....

   The 13th Amendment declares that slavery and involuntary servitude
   shall be abolished, and that Congress may enforce the
   enfranchisement of the slaves. Granted: but does freedom of the
   blacks require the slavery of the whites? [A]nd enforced fellowship
   would be that.

   The 14th amendment declares that no state shall make or enforce any
   laws which shall abridge the privileges and immunities of citizens
   of the United States. True. But is it a privilege and immunity of a
   colored citizen to sit and ride by the side of white persons?

   It declares that no person shall be denied the equal protection of
   the laws. But are they denied that protection when they are
   required to eat and sit and ride by themselves, and not with
   whites.... [S]urely it is no deprivation of civil right to give
   each race the right to choose their own company. (169)


It is clear from these comments that Bradley believed that the right to choose one's own company was what had come to be called a "social" right rather than a civil right. That distinction appeared in a passage in his Civil Rights Cases opinion, in which, referring to the Civil Rights Act of 1866, he said that "Congress did not assume ... to adjust ... the social rights of men and races in the community; but only to declare and vindicate those fundamental rights which appertain to the essence of citizenship...." (170) That comment, and other passages in Bradley's opinion, such as " [i]t would be running the slavery argument into the ground to make it apply to every act of discrimination which a person may see fit as to make as to the guests he will entertain," (171) and "[w]hen a man has emerged from slavery, and, by the aid of beneficent legislation, has shaken off the inseparable concomitants of that state, there must be some stage in the process of his elevation when he ... ceases to be the special favorite of the laws," (172) have contributed to the conventional view of the decision as an effort on part of the Waite Court to facilitate a retreat from the egalitarian ideals of Reconstruction.

But, as noted, the distinction between civil rights and social rights had appeared in debates over the passage of the Civil Rights Act of 1866 and the Civil Rights Act of 1875: Bradley's assumption that an individual's choice to discriminate with respect to the entertainment of guests implicated "social" rather than "civil" rights was neither novel nor exceptional.

Justice John Marshall Harlan, dissenting in the Civil Rights Cases, acknowledged the existence of the civil rights and social rights distinction. "I agree," Harlan wrote, "that government has nothing to do with social, as distinguished from technically legal, rights of individuals.... I agree that if one citizen chooses not to hold social intercourse with another, he is not and cannot be made amenable to the law for his conduct in that regard; for even upon grounds of race," Harlan conceded, "no legal right of a citizen is violated by the refusal of others to maintain social relations with him." (173) But the rights being secured by the Civil Rights Act of 1875 were in Harlan's view "legal, not social rights." (174) He maintained that the right of black citizens to have access to public accommodations on the same terms as white citizens was "no more a social right than ... [their] right to sit in a public building with others, of whatever race, for the purpose of hearing the public questions of the day discussed." (175)

Bradley and Harlan's contemporaries thus agreed that the category of "civil rights"--protected legal rights of citizens--did not include "social" rights. Their position on the protected status of a right to equal access to public accommodations differed, however. Bradley analogized equal access to public accommodations to equal access to a dinner party or a ball. Enforced access for blacks would submit whites to "another form of slavery"; each race had the right to "choose its own company." (176) Harlan analogized the public accommodations provisions of the 1875 Act to the right of a colored citizen to use the accommodations of a public highway on the same terms as are permitted to white citizens. (177)

But the social rights/civil rights distinction, or, for that matter, Bradley's observation that "[individual invasion of individual rights is not the subject-matter of the [Fourteenth] amendment," (178) did not figure prominently in his analysis of the constitutionality of the Civil Rights Act of 1875. That Act was constitutionally defective, Bradley concluded, because it exceeded the mandates of both the Fourteenth and Thirteenth Amendments. The Fourteenth Amendment, he maintained, was predicated on the principle that:

   where a subject is not submitted to the general legislative power
   of Congress, but is only submitted thereto for the purpose of
   rendering effective some prohibition against particular State
   legislation or State action in reference to that subject, the power
   given is limited by its object, and any legislation by Congress in
   the matter must necessarily be corrective in its character, adapted
   to counteract and redress the operation of such prohibited State
   laws or proceedings of State officers. (179)


The provision of the Fourteenth Amendment giving Congress the power to enforce its other provisions "by appropriate legislation" thus meant that the enforcement power would be limited by the scope of those provisions. (180) All the restrictive provisions of the Amendment--its privileges or immunities, due process, and equal protection clauses--were restrictions on states or their officials. The enforcement provision of the Amendment could only come into play as a "mode[] of redress against the operation of State laws, and the action of State officers executive or judicial, when these are subversive of the fundamental rights specified in the amendment." (181)

Although Bradley clearly felt that access to public accommodations was a social rather than a civil right, his opinion in the Civil Rights Cases formally took no position on that issue. He stated that although the Court had assumed "that a right to enjoy equal accommodation and privileges in all inns, public conveyances, and places of public amusement, is one of the essential rights of the citizen," it was not necessary to resolve that issue because the Civil Rights Act of 1875 far exceeded the enforcement power of the federal government under the Fourteenth Amendment. (182) It not only was directed at individuals rather than states or state actors, it was "primary and direct," not "corrective" legislation. As Bradley put it,

   The law in question, without any reference to adverse State
   legislation on the subject, declares that all persons shall be
   entitled to equal accommodations and privileges of inns, public
   conveyances, and places of public amusement, and imposes a penalty
   upon any individual who shall deny to any citizen such
   accommodations and privileges. This is not corrective legislation;
   it is primary and direct.... It supersedes and displaces State
   legislation on the same subject.... It ... assumes that the matter
   is one that belongs to the domain of national regulation. (183)


The theory of federalism animating Bradley's analysis of the Fourteenth Amendment in the Civil Rights Cases was thus similar to that animating Miller's Slaughter-House Cases opinion. In both the Slaughter-House and Civil Rights Cases, Court majorities treated the enforcement provisions of the Fourteenth Amendment as extending only as far as the explicit coverage of that Amendment. Because the prohibitions of the Privileges or Immunities, Due Process, and Equal Protection Clauses were against "state" action, federal enforcement could only take place against states or state officials. Otherwise the federal government, and the federal courts, would be a "perpetual censor" on the activities of the states; (184) otherwise Congress could "legislate on subjects which are within the domain of State legislation"; (185) otherwise Congress could "create a code of municipal law for the regulation of private rights"; (186) otherwise Congress could "take the place of the State legislatures and ... supersede them." (187)

In short, allowing Congress to legislate generally on the rights of life, liberty, and property because states were known to be capable of depriving persons of those rights without due process of law assumed that every time states were forbidden from legislating on a subject, Congress had a general power to legislate on it. That assumption, Bradley declared in the Civil Rights Cases, was "certainly unsound." (188)

There was, however, the possibility that the Thirteenth Amendment provided support for the Civil Rights Act of 1875. That amendment did not merely prevent states from establishing or maintaining slavery; it declared that slavery should not exist in the United States and gave Congress power to enforce that declaration. If one employed Bradley's terminology in the Civil Rights Cases, the amendment anticipated that federal legislation enforcing the abolition of slavery could be "primary and direct in its character." (189) As Bradley put it, Congress "has a right to enact all necessary and proper laws for the obliteration and prevention of slavery with all its badges and incidents...." (190)

Thinking of the Slaughter-House Cases and the Civil Rights Cases primarily as federalism cases, making use of language designed to reveal when federal enforcement powers under the Civil Rights Act of 1866 and the Reconstruction Amendments could, or could not, be invoked to correct state or private violations of civil rights, places the previously quoted passages about "running the slavery argument into the ground," and African Americans being "the special favorite of the laws" in a different light. They can be seen as rhetorical efforts to counter the argument that denying black persons access to public accommodations was a form of slavery, and thus correctable by the federal government under the Thirteenth Amendment. (191) Bradley conceded that under the enforcement provision of the Thirteenth Amendment, Congress could pass laws that were "direct and primary," and could "operat[e] upon the acts of individuals" as well as those of states. (192) So the question was whether "the refusal to any persons of the accommodations of an inn or a public conveyance or a place of public amusement by an individual" amounted to a "badge or incident of slavery." In Bradley's view that question answered itself; such an act of refusal had "nothing to do with slavery or involuntary servitude." (193)

Moreover, Bradley noted, "[t]here were thousands of free colored people in this country before the abolition of slavery, ... yet no one, at that time, thought that it was any invasion of [their] personal status as [freemen] because ... [they were] subjected to discriminations in the ... amusement. Mere discriminations on account of race and color were not regarded as badges of slavery." (194) It may be the case that after the passage of the Fourteenth Amendment "the enjoyment of equal rights in all these respects [had] become established." (195) But if that were so, it was necessary for a state to deny such rights or neglect to enforce them before corrective federal legislation could come into play.

E. Implications

To summarize, two issues figured prominently in the constitutional history of civil rights after the passage of the Civil Rights Act of 1866. The first issue was the content and the scope of the category of "civil rights." The other was the effect of the 1866 Act and the Reconstruction Amendments on the antebellum relationship between the federal government and the states. By the 1880s, a consensus on those issues had been forged by the Supreme Court of the United States. That consensus has not been described accurately by conventional accounts of the constitutional history of the Reconstruction years.

In recovering the context in which the category of civil rights originated in American constitutional history, it is essential to understand that the framers of the Civil Rights Act of 1866 were simultaneously committed to ensuring that newly freed African Americans were accorded the same civil rights as white persons and to preserving the antebellum balance of state and federal powers. They employed three devices in the Act to accomplish those goals: making "all (non-alien) persons born in the United States" citizens of the United States; affording all U.S. citizens an enumerated list of civil rights; and stating that "all persons" were to have the same such rights accorded white citizens. (196) The rights listed, however, were ones that had been traditionally reserved for citizens of states and were thus held against state governments.

Understood in that fashion, the Civil Rights Act of 1866 created no new civil rights for newly designated "citizens of the United States" that had not already been held by citizens of states, with the exception of free African Americans. By being citizens of the United States, free African Americans had the same civil rights as white citizens.

The enforcement sections of the Act demonstrated its ambiguous relationship to antebellum models of federalism. Although the civil rights listed in the Act were rights traditionally held against state governments, Congress was given power to enforce the Act by "appropriate" legislation, and the federal courts were given power to uphold its provisions. The wording of Section 1 of the Act suggested that its enforcement by agencies of the federal government would likely take place when a state declined to afford free blacks the same civil rights it afforded its white citizens. (197) This raised the question of whether the Act was designed to transform the balance between state and federal powers; that question, we have seen, was debated in Congress when it passed the Act.

Uncertainties about the effect of the goal of protecting the civil rights of newly freed African Americans on the antebellum alignment of state and federal powers also marked, we have seen, the debates over the Thirteenth, Fourteenth, and Fifteenth Amendments. It was clear that those Amendments were designed to protect the civil rights of African Americans as well, but were they designed to protect other newly created federal civil rights? That was the central issue for the courts who began their interpretations of the Amendments in the 1870s.

The work of the scholars previously cited, particularly that of Brandwein on voting rights cases, has demonstrated that a judicial consensus eventually emerged on how to resolve the above ambiguities involving civil rights and federalism. (198) The best way to see that consensus in place is to read Bradley's opinion in the Civil Rights Cases against the backdrop of the cases, beginning with the Slaughter-House Cases that have been previously discussed.

With respect to what was included and excluded in the category of "civil rights," one should first look to the terminology employed by antebellum courts to characterize those rights, making use of designations such as "natural," "secured," "guaranteed," "created," and "conferred" rights. As courts began to work out the judicial enforcement of rights after the passage of the Civil Rights Act of 1866 and the Reconstruction Amendments, it became clear that they were treating different categories of rights as triggering different institutional enforcement responses. Rights "created" by the Reconstruction Amendments, such as the right not to have one's opportunity to vote restricted on the basis of race, could be enforced by the federal government. In contrast, "secured" or "guaranteed" rights, which had their origins in the "natural law" foundations of common law, were rights held against states. (199) Congress or federal courts could only enforce those rights if states had willfully or negligently failed to uphold them.

Thus the antebellum terminology of rights, as retained and modified by post-Civil War enactments, served as the working framework for both the inclusion and exclusion of those rights associated with civil rights and the federalism issues. And Bradley's opinion in the Civil Rights Cases revealed that at the center of that framework was an interpretation of the Civil Rights Act of 1866. (200)

Early in his opinion, Bradley had used the Civil Rights Act to highlight his distinction between federal enforcement legislation that was "corrective" in character and the "direct and primary" legislation of the Civil Rights Act of 1875. (201) After identifying the rights enumerated in the Civil Rights Act of 1866, Bradley noted that they were rights "for which the States alone were or could be responsible." (202) That is, the "secured" or "guaranteed" rights identified as "civil rights" by the 1866 Act were rights held against the states, and as such were to be enforced by state authorities. Efforts on the part of individuals to infringe upon those rights did not "destroy or injure" the rights because they could be "vindicated by resort to the laws of the State for redress." (203) That was what Bradley meant in saying that "civil rights, such as are guaranteed by the Constitution against state aggression, cannot be impaired by the wrongful acts of individuals, unsupported by State authority in the shape of laws, customs, or judicial or executive proceedings." (204) He noted that when the Civil Rights Act of 1866 enacted penalties against individuals for violating the civil rights it enumerated, it had included language making clear that individual violations needed to be "under color of any law, statute, ordinance, regulation or custom." (205)

Bradley's primary purpose in associating individual violations of the rights enumerated in the 1866 Act with state law or custom was to demonstrate that, unlike its 1875 counterpart, the 1866 Act was limiting federal enforcement powers to those supporting "corrective" legislation. (206) But it is possible to understand his interpretation of the Civil Rights Act of 1866 in another way.

Elsewhere in his opinion, Bradley had indicated that the constitutional basis for the Civil Rights Act of 1866 was the Fourteenth Amendment, whose Privileges or Immunities and Equal Protection Clauses prohibited states from treating black and white citizens differently in the exercise of their civil rights. (207) The constitutionality of the 1866 Act was thus taken for granted by Bradley, but he understood Congress's power to enforce the civil rights it enumerated as being predicated on their being violated under the authority of a state. Where individuals deprived black citizens of the fundamental rights they now shared with white citizens and states, under color or law or custom, failed to correct those deprivations, Congress could use its enforcement powers. (208)

The Civil Rights Act of 1866 acted as both a floor and a ceiling for the content and scope of "civil rights." The only rights that states were bound to enforce were those now associated, after the passage of the Reconstruction Amendments, with state citizenship. And when states failed to enforce those rights, corrective federal legislation could ensue. It was not necessary that state officials or policies are the source of deprivations of the civil rights of blacks; state officials or policies could also fail to punish individual violations of civil rights of blacks and trigger enforcement. But "civil rights" meant only the "fundamental rights" identified by Bradley as listed in the Civil Rights Act of 1866.

We are now in a position to understand more clearly what Bradley meant in saying that "civil rights, such as are guaranteed by the Constitution against State aggression, cannot be impaired by the wrongful acts of individuals...." (209) He meant that only when state authorities failed to vindicate such rights from infringement, or to punish those who infringed them, would the enforcement provisions of the 1866 Act or the Fourteenth Amendment come into play. We are also in a position to understand more clearly what he meant when, in the course of discussing the Thirteenth Amendment as one of the bases for the 1866 Act, he said that "Congress did not assume, under the authority given by the Thirteenth Amendment, to adjust what may be called the social rights of men and races in the community, but only to declare those fundamental rights which appertain to the essence of citizenship...." (210) He looked to the Civil Rights Act of 1866 as an authoritative source of fundamental rights, but also as an indication of what rights were not "fundamental."

This prepared Bradley for his conclusion in the Civil Rights Cases that access to inns, public conveyances, and places of public amusement was a "social" rather than a civil right. In his view, the framers of the Civil Rights Act of 1866 could not have regarded equal access to public accommodations as a "fundamental right" of citizenship. (211) That Act was the ceiling as well as the floor of Reconstruction-era civil rights. (212)

CONCLUSION: A REVISED NARRATIVE OF THE ORIGINS OF CIVIL RIGHTS

Bradley's opinion in the Civil Rights Cases represents a snapshot of the legal status of civil rights in America approximately twenty years after the end of the Civil War. (213) It also represents a snapshot of the predominant view of the relationship of the federal government and the states in the area of civil rights. Here, again, the Civil Rights Act of 1866 served as a template.

I began this analysis by suggesting that recent scholarship has shown that the conventional history of the Supreme Court's role in interpreting the Reconstruction Amendments in civil rights cases needs refinement. Drawing on that scholarship, I am claiming that the two most "notorious" decisions featured in that conventional history, the Slaughter-House and Civil Rights Cases, need to be read in connection with other civil rights decisions of the Court and its Justices between 1871 and 1883. From those decisions, the following jurisprudential consensus affecting the role of the states and the federal government in "civil rights" cases can be extracted.

Most civil rights were creatures of state law. Whether the sources of those rights were natural law, antebellum common law, the Civil Rights Act of 1866, or judicial efforts to identify "fundamental rights" associated with citizenship, the consensus was that articulated by Bradley in the Civil Rights Cases: the civil rights of individuals were, on the whole, to be enforced by state courts, unless it could be shown that states had willfully or negligently failed to protect those rights. There was, however, a category of civil rights that had been "created" or "conferred" by provisions of the Constitution, such as the Fifteenth Amendment right not to have one's opportunity to vote restricted on the basis of race or color. Created rights, like the right not to have one's ability to vote restricted on racial lines, could be enforced by Congress and the federal courts, and did not require state action.

The majority in the Civil Rights Cases rebuffed Harlan's view that equal access to public accommodations was a civil right rather than a social right. (214) But that did not mean that the majority took those "fundamental" civil rights enjoyed by black as well as white citizens to be wholly at the sufferance of states and state officials. The disinclination of the Court in the Civil Rights Cases to compel equal access to public accommodations left the rest of its post-Civil War jurisprudence intact, which meant that whenever one of the "fundamental" civil rights accorded to citizens was not enforced, whether willfully, carelessly, or inadvertently by a state court, "corrective" federal legislation under the Thirteenth or Fourteenth Amendment could enforce the right, and whenever an individual or a state interfered with the exercise of voting on the basis of race or color, "direct and primary" federal legislation could ensue. (215)

The Court's post-Civil War jurisprudence of civil rights was thus designed to preserve, in large measure, the antebellum balance of federal and state powers so as to prevent the federal government from becoming a "perpetual censor" of the activities of states. At the same time, the Court's jurisprudence was designed to create a space for "primary and corrective" federal legislation to guarantee the enforcement of two sorts of civil rights violations: the willful or negligent failure of states to enforce the "secured" civil rights enumerated in the Civil Rights Act of 1866, and the failure of state or private actors to guarantee civil rights "created" or "conferred" by the Constitution. Because the latter category of civil rights was comparatively small, and because some "under color of state law" requirement was necessary to trigger federal enforcement of the former category, the Court's Justices believed that an appropriate balance between state and federal powers would remain after the Reconstruction enactments.

Two decades after the conclusion of the Civil War, the state of civil rights in America was in a distinctive place. In one respect, the concept of "civil rights" had evolved dramatically from its virtually nonexistent status in antebellum jurisprudence. "Rights" had been associated with state citizenship, which had been extended to virtually all native-born residents of a state and had been equated with national citizenship. (216) A list of civil rights had been enumerated in the Civil Rights Act of 1866 and been characterized as "fundamental" in Supreme Court decisions. (217) Those rights had explicitly been afforded to black as well as white persons. In contrast to the antebellum jurisprudence of rights, in which states could define citizenship in a fashion that excluded numerous categories of persons from that status and could limit the rights of non-citizens with impunity, this was a substantial change. Not only had "civil rights" become an established and meaningful legal category, but also nearly all Americans were regarded as possessing civil rights.

In another respect, the jurisprudential status of civil rights in the 1880s reflected the origins of that category in the antebellum legacies of slavery, racial discrimination, and the autonomy of the states. (218) Although the language of some provisions of the Fourteenth Amendment had been expansive, speaking of "privileges or immunities of citizens of the United States," "due process of law," and the "equal protection of the laws," court decisions had interpreted the Amendment's primary purpose as elevating blacks out of slavery by preventing states from subjecting them to discriminatory treatment. The Privileges or Immunities Clause was read narrowly, the Due Process Clause was deemed not to cover economic "liberties," and the Equal Protection Clause was read as a corrective standard for the acts of state and state officials, not as the source of a new national right to be free from discrimination of a variety of sources.

Each time a Reconstruction-era Congressional statute or constitutional amendment raised the possibility of the federal government's exercising vigorous oversight of discriminatory state customs or laws, courts rejected the notion. The enforcement provision of the Civil Rights Act of 1866 was treated as applicable only to racially discriminatory actions engaged in, or tolerated by, state officials. The Fourteenth Amendment's provisions were treated in a comparable fashion. Only the Fifteenth Amendment's enforcement provision pertaining to voting rights was made applicable to individuals as well as state actors. "Direct and primary" legislation allowing the federal government to enforce civil rights without a predicate of state neglect, such as that anticipated in the Civil Rights Act of 1875, was invalidated.

Perhaps most ominously, the category of "fundamental" civil rights only expanded in one respect after the passage of the Civil Rights Act of 1866. Voting rights, conceived of as rights not to have voting opportunities restricted on the basis of race or color, were thought of as "fundamental" rights, and because they had been conferred, they could be enforced without a state action predicate. (219) Otherwise, the list of "fundamental" rights associated with citizenship looked about the same in 1883 as it had when Washington sought to enumerate "privileges and immunities" in 1823.220 Moreover, the category of "social rights" had emerged as an implicit limitation on the category of civil rights. To say that someone had a "social right" to do something was the equivalent of saying that the action had no legal protection.

The "social rights" category threatened to become more robust as the focus of racial discrimination moved, in the late nineteenth and early twentieth centuries, from explicit efforts on the part of states to afford blacks fewer opportunities than whites to efforts on the part of states and private individuals to prevent blacks and whites from contact in public places. As inns, public conveyances, other public facilities such as schools, hospitals, and "places of public amusement" recognized that they could not entirely bar groups of persons from access, they, along with state legislatures, began to segregate their black and white patrons.

Racial segregation can be thought of as a response to several of the concerns Bradley raised in his 1876 memorandum on civil rights. (221) It reinforced the idea that in social settings people could choose with whom they associated, exercising what amounted to a "natural" right of association, which Bradley felt could not be overcome by law. It also reinforced what Bradley called "racial antipathy"--the belief that most whites would not want blacks to "eat, sit, or lodge" with them. Finally, it introduced the rationale of "separate but equal." As Bradley noted, if blacks were required to eat or sit or ride with other blacks, that was just a choice to be in the society of their own kind. (222)

But it is a mistake to allow the expansion of the social rights category in segregation statutes and court decisions from the 1890s through the 1920s to overwhelm the civil rights jurisprudence of the 1870s and 1880s. Those decades are best seen not as preparation for the world of Jim Crow, but as a period in which antebellum conceptions of rights and federalism awkwardly coexisted with impulses to define and to protect the legal rights of African Americans emerging from slavery into an uncertain future.

In retrospect, the Civil Rights Act of 1866, not the Thirteenth, Fourteenth, or Fifteenth Amendments, was the talismanic post-Reconstruction civil rights document. It was in some respects a replay of lingering antebellum issues. Its focus was primarily on buttressing the rights of former slaves by protecting them from further discrimination. Its list of protected "fundamental" rights was drawn from antebellum jurisprudence. Courts interpreted its potential to transform state law through its enforcement provisions as minimal, and thus its enactment had little effect on the antebellum map of federal and state relations. But at the same time, it did something monumental.

The Civil Rights Act of 1866 transformed the indeterminate antebellum status of "rights" in America into a legal category whose application was as broad as the new legal category of citizen, which after the Fourteenth Amendment applied to the vast majority of persons residing in the United States. No longer could states limit the rights of their residents simply by declining to treat them as citizens. Moreover, persons of "every race and color," as citizens, were entitled to the same rights as white citizens: no longer could states make race a proxy for granting or denying civil rights. It seems fair to say that with the enactment of the Civil Rights Act of 1866 came the origins of civil rights in America.

(1.) Ch. 31, 14 Stat. 27 (reenacted by Enforcement Act of 1870, ch. 114, [section] 18, 16 Stat. 140, 144 (codified as amended at 42 U.S.C. [section][section] 1981-1982 (2012)).

(2.) 83 U.S. (16 Wall.) 36 (1873).

(3.) 18 Stat. 335.

(4.) 109 U.S. 3 (1883).

(5.) U.S. Const, amend. XIV, [section] 1, cl. 2.

(6.) U.S. Const, amend. XIV, [section] 1, cl. 4.

(7.) Ch. 31, 14 Stat. 27 (reenacted by Enforcement Act of 1870, ch. 114, [section] 18, 16 Stat. 140, 144 (codified as amended at 42 U.S.C. [section][section] 1981-1982 (2012)).

(8.) The most influential illustration of that narrative, Eric Foner's Reconstruction, called the Reconstruction era "America's Unfinished Revolution" and announced that one of the major themes of his account was "the emergence during the Civil War and Reconstruction of a national state possessing vastly expanded authority and a new set of purposes, including an unprecedented commitment to the ideal of a national citizenship whose equal rights belonged to all Americans regardless of race." Both that ideal and the accompanying authority of the federal government to enforce it were casualties, Foner maintained, of the compromise of 1877, which "marked a decisive retreat from the idea ... of a powerful national state protecting the fundamental rights of American citizens." The ideals of Reconstruction were further undermined, Foner argued, by the Supreme Court, which "during the 1870s ... retreated from an expansive definition of federal power, and moved a long way toward emasculating the postwar amendments," and in the 1880s "declared the Civil Rights Act of 1875 unconstitutional" and used its "expanded jurisdiction born of Reconstruction" to "protect corporations from local regulation" rather than protecting African Americans from discrimination. Foner, Reconstruction, xxvi, 529, 582, 586-87 (1988). In a recent lecture at Marquette University Law School, Foner reaffirmed this view, saying, "Reconstruction was a time of remarkable experiment in democracy, but of course it was short-lived, and there followed a long period where the rights protected by the [Reconstruction-era] constitutional amendments were flagrantly violated in the South and indeed much of the rest of the nation. One part of this long process of retreat from the egalitarian impulse of Reconstruction was a sharp narrowing of the rights that came along with being an American citizen. In this, the Supreme Court led the way." Eric Foner, The Civil War, Reconstruction, and the Origins of Birthright Citizenship, Marquette Lawyer, Summer 2013 at 41-42 [hereinafter Foner, The Civil War.

(9.) Work by legal scholars contemporaneous with and following Foner's book advanced readings of Supreme Court and lower federal court decisions that suggested that Foner's characterization of the response of the federal judiciary to Reconstruction Amendments and legislation was oversimplified. See, e.g., Robert J. Kaczorowski, The Politics of Judicial Interpretation 1-6 (1985); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Decision 194-96 (1988); Michael G. Collins, Justice Bradley's Civil Rights Odyssey Revisited, 70 Tul. L. Rev. 1979 (1996). More recently Pamela Brandwein has set forth a major reinterpretation of what she calls the "judicial settlement of Reconstruction," emphasizing, among other things, the anachronistic assumptions of the conventional narrative. See Pamela Brandwein, A Judicial Abandonment of Blacks? Rethinking the "State Action" Cases of the Waite Court, 41 LAW & SOC'Y Rev. 343, 380 (2007); Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (2011) [hereinafter Brandwein, Rethinking Reconstruction], My subsequent narrative of the Reconstruction-era history of the category of civil rights should be understood as informed, in some places, by that work, and in other places addressing issues outside its scope. Instances in which I have relied directly on the findings or interpretations of other scholars are identified in the notes that follow.

(10.) 14 Stat. 27.

(11.) See, e.g., The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 96 (1873) (Field, J., dissenting) (questioning whether the Privileges and Immunities Clause "refers to the natural and inalienable rights which belong to all citizens," as opposed to new privileges "confer[red]" upon citizens by the Amendment).

(12.) Both Collins, supra note 9, at 1990-98, and Brandwein, Rethinking Reconstruction, supra note 9, at 11-17 (recognizing that the distinction between "secured" and "created or conferred" rights was crucial to Justice Joseph Bradley and his contemporaries, although Collins uses different language to describe the distinction).

(13.) Both Collins, supra note 9, at 1993-95, and Brandwein, Rethinking Reconstruction, supra note 9, at 11-14, recognize the federalism implications of the distinction between "secured" and "conferred" rights.

(14.) 83 U.S. (16 Wall.) 36 (1873).

(15.) 109 U.S. 3 (1883).

(16.) See The Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 75 (1873) (holding that the Privileges and Immunities Clause did not alter the police powers of the state, but instead affected only the rights of citizens of the United States, as opposed to citizens of the particular state); The Civil Rights Cases, 109 U.S. 3, 11 (1883) (holding that the Equal Protection Clause did not affect the private choices of individuals to exclude black persons from business establishments).

(17.) See Foner, The Civil War, supra note 8, at 41 (referring to those Court opinions as a "retreat" and a judicial "narrowing of ... rights").

(18.) An abiding difficulty, in seeking to recover the original understanding of the framers of constitutional provisions, is separating the language of those provisions from subsequent judicial interpretations of them. When one examines the comments of contemporaries at the time of the framing of the Fourteenth Amendment, one is unable to find any mention of Bill of Rights provisions being "incorporated" against the states by that Amendment's passage. Nonetheless, as we will see in more detail, some Reconstruction-era members of Congress, and judges, assumed that the Fourteenth Amendment's Privileges and Immunities Clause was designed to create a new set of national civil rights, which included not only rights mentioned in the Bill of Rights but also traditional civil rights that had been hitherto thought as being directed only at states. The idea of rights held against the federal government as being "incorporated" against the states by the Due Process Clause of the Fourteenth Amendment did not surface until Chicago, Burlington & Quincy R.R. v. City of Chicago, 166 U.S. 226 (1897).

(19.) Brandwein, Rethinking Reconstruction, supra note 9, at 25-26, states the following: "During the Progressive and New Deal eras ... materialist histories of post-Civil War America were written which cast the postwar Court as the tool of big business.... In general, these materialist histories projected the political and economic developments of the 1890s backward onto the postwar years." While I do not disagree with that comment, my explanation for the anachronistic character of the conventional narrative emphasizes perceptions about the nature of law and judging.

(20.) 6 F. Cas. 546 (C.C.E.D. Pa. 1823).

(21.) Id. at 551.

(22.) Id.

(23.) Id.

(24.) Id.

(25.) Id. at 552.

(26.) Id. at 551-52.

(27.) Id. at 552.

(28.) Id. (internal quotations marks omitted).

(29.) GEORGE RUTHERGLEN, CIVIL RIGHTS IN THE SHADOW OF SLAVERY 25 (2013).

(30.) Brainerd Currie & Herma Hill Kay, Unconstitutional Discrimination in the Conflict of Laws; Privileges and Immunities, in BRAINERD CURRIE, SELECTED ESSAYS ON THE CONFLICT OF LAWS 460-61 (1963).

(31.) Corfield, 6 F. Cas. at 551.

(32.) Id. at 552 (internal quotation marks omitted).

(33.) U.S. Const, art. IV, [section] 1.

(34.) Id.

(35.) Id. at art. IV, [section] 2, cl. 2.

(36.) Id. at art. IV, [section] 2, cl. 3.

(37.) Id.

(38.) Corfield, 6 F. Cas. at 552-54.

(39.) U.S. Const, art. IV, [section] 2, cl. 1.

(40.) Rogers M. Smith, Civic Ideals: Conflicting Visions of Citizenship in U.S. History 144-45 (1997).

(41.) Smith, supra note 40 at 144-45.

(42.) For an extended discussion of the limitations on the definition of citizen in the first three decades of the nineteenth century, including free African Americans, Native Americans, and women, see id. at 165-96. Citizenship in the sense of being regarded as a person who possessed inalienable privileges and immunities was distinguishable from naturalized citizenship. The latter term was reserved for former aliens who chose to transfer their allegiance to the United States. The framers of the Constitution, mindful of the quite different standards states had applied in considering whether to naturalize aliens, reserved the power "to establish a uniform rule of naturalization" in Congress. U.S. Const. art. I, [section] 8, cl. 4. Thus it was possible for a person to be a naturalized citizen of the United States but not a full "citizen" of a state in the sense of being able to exercise all the privileges associated with citizenship.

(43.) See Gardner v. Ward, 2 Mass. (2 Will.) 244, 244 (1805) (stating that the determination of "what were the rights of Mr. G., or in what state he must be considered in law" would not be "affected by any ... legislative act ... [but rather] by the principles of the common law....").

(44.) For more detail, see Rutherglen, supra note 29, at 21-23.

(45.) 48 U.S. (7 How.) 1 (1849).

(46.) U.S. Const, art IV, [section] 4 ("The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect them against Invasion, and on Application of the Legislature ... against domestic violence.").

(47.) Luther, 48 U.S. (7 How.) at 1.

(48.) Id. at 28.

(49.) Id.

(50.) Id. at 28-29.

(51.) Rutherglen, supra note 29, at 53-54, notes that the 1856 edition of Bouvier's Law Dictionary, at the time a standard source for the definition of legal terms, had no entry for "civil rights." Editions published after 1866 added an entry that defined "civil rights" as "certain rights secured to citizens of the United States by the 13th and 14th amendments to the constitution, and by various acts of congress made in pursuance thereof."

(52.) The first use of that term came in debates over the Civil Rights Act of 1866. See Rutherglen, supra note 29, at 66-67. It is not clear exactly what members of the 39th Congress meant by "badges and incidents" of slavery.

(53.) Scott v. Sandford, 60 U.S. (19 How.) 393 (1857).

(54.) Id. at 427.

(55.) U.S. Const, amend. XIII, [section] 1.

(56.) U.S. Const, amend. XIII, [section] 2.

(57.) Rutherglen, supra note 29, at 38.

(58.) Civil Rights Act of 1866, [section] 1, 14 Stat. 27.

(59.) For illustrations of Black Codes, see Theodore Brantner Wilson, The Black Codes of the South 61-80 (1965).

(60.) For more detail, see Rutherglen, supra note 29, at 47-48. The last portion of the Act's last sentence, "any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding," would have been taken as a reference to Black Codes. Although its language sweeps more broadly, facially overriding "any law" or "custom" inconsistent with the Act, such "notwithstanding" clauses were conventionally employed as boilerplate in the early nineteenth century. See, e.g., Act of Mar. 3, 1805, ch. 41, [section] 8, 2 Stat. 339, 342; Act of June 17, 1844, ch. 98, 5 Stat. 677; Act of July 17, 1862, ch. 201, [section] 13, 12 Stat. 597, 599.

(61.) For a deeper explanation, see Rutherglen, supra note 29, at 79.

(62.) See, e.g., Civil Rights Act of 1866, ch. 31, [section][section] 5, 9, 14 Stat. 27. For more detail, see Rutherglen, supra note 29, at 57.

(63.) See Cong. Globe, 39th Cong., 1st Sess. 478 (1866).

(64.) Cong. Globe, 39th Cong., 1st Sess. 1832 (1866) (Statement of Rep. William Lawrence of Ohio).

(65.) Senator Lyman Trumbull of Illinois made this argument in the debates over the Act. See Cong. Globe, 39th Cong., 1st Sess. 475, 500, 600 (1866).

(66.) For more detail, see Rutherglen, supra note 29, at 59-71, and Brandwein, Rethinking Reconstruction, supra note 9, at 162.

(67.) U.S. Const, amend. XIV, [section] 1.

(68.) Id.

(69.) As we have seen, a distinction between "civil" and "political" rights had existed in antebellum jurisprudence, political rights being thought of as those conferred or created by some positive enactment, such as a constitutional amendment, and civil rights being associated with "natural" rights. But once a political right had been created, Reconstruction-era judges thought it capable of evolving into the status of a "civil" right. See Brandwein, Rethinking Reconstruction, supra note 9, at 163 (discussing voting rights).

(70.) Civil Rights Act of 1866, [section] 1, 14 Stat. 27.

(71.) There has been a substantial historical literature on this issue. Compare Robert Kaczorowski, The Supreme Court and Congress's Power to Enforce Constitutional Rights: A Moral Anomaly, 73 Ford. L. Rev. 153, 154 (2004) (concluding that plenary enforcement power was anticipated by the Amendment), with Michael Les Benedict, Preserving the Constitution 3-22 (2006) (arguing that federal enforcement power was only triggered by the denial of rights by states).

In an earlier treatment of lower court cases decided between 1866 and 1873, Kaczorowski argued that "[j]udges expressed the belief that the Reconstruction Amendments and the Civil Rights Act [of 1866] were intended to establish the primacy of national citizenship and national authority over the right of citizens." Kaczorowski, supra note 9, at 5. The cases that Kaczorowski discussed primarily involved challenges to the constitutionality of the Act. He maintained that "judges uniformly understood that the Civil Rights Act of 1866 expressed a legal theory that assumed that Congress and the federal courts possessed primary authority to protect civil rights because these rights were recognized and secured by the United States Constitution as rights of American citizenship." Id. at 7. Having described the posture of judges between 1866 and 1873 in that fashion, Kaczorowski then argued that the Waite Court retreated from that posture because it was "unable to devise a theory for primary national civil rights authority that would have permitted the states to continue to fulfill functions that the Court believed were essential to the survival of American federalism." Id. at 183.

My analysis agrees with Kaczorowski's conclusion that federalism issues were important for the Chase and Waite Courts. But I disagree with his assertion that there was a uniform understanding among state and federal judges that the Civil Rights Act of 1866 gave Congress and the federal courts authority to safeguard all the civil rights of American citizens against state interference. In my view the meaning and scope of "civil rights," and their implications for federalism issues, were deeply contested issues in the 1870s and 1880s.

(72.) Civil Rights Act of 1866, [section] 1, 14 Stat. 27.

(73.) U.S. Const, amend. XIV, [section] 1 (emphasis added) ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.").

(74.) See discussion supra Part I.

(75.) Rutherglen, supra note 29, at 52, 56.

(76.) See supra Parts I, II.

(77.) 92 U.S. 542 (1876).

(78.) See Charles Lane, The Day Freedom Died: The Colfax Massacre, the Supreme Court, and the Betrayal of Reconstruction 265-66 (2008).

(79.) 16 Stat. 140.

(80.) Id. at 141.

(81.) United States v. Cruikshank, 25 F. Cas. 707 (C.C.D. La. 1874) (No. 14,897).

(82.) Id. Bradley's opinion, and a March 12, 1871, letter he wrote to then-federal judge William B. Woods, have been noted by Nelson, supra note 9, at 196, Collins, supra note 9, at 1985-86, 1988-1995; and Brandwein, Rethinking Reconstruction, supra note 9, at 12-17, 93-112. In the letter, prompted by circuit court decisions interpreting enforcement provisions of the Thirteenth and Fourteenth Amendments and the Civil Rights Act of 1866, Bradley said that "denying the equal protection of the laws includes the omission to protect as well as the omission to pass laws for protection .... Denying includes inaction as well as action." Letter from Justice Joseph Bradley to Judge William B. Woods (on file with Joseph Bradley Papers, New Jersey Historical Society). Although each of those scholars recognized that by 1871 Bradley had come to believe that civil rights could be infringed by states through "inaction" as well as "action," they made different uses of that finding.

Nelson merely noted the affinity between Bradley's 1871 position and Justice John Marshall Harlan's dissent in the Civil Rights Cases. Nelson, supra note 9, at 195-96.

Collins, as part of an effort to demonstrate that Bradley's constitutional jurisprudence was consistent over time, emphasized that Bradley distinguished between "preexisting" rights, which were only protected by the Fourteenth Amendment when they were intentionally or negligently violated by states, and "newly conferred" rights, such as the right to be free from the condition of slavery conferred by the Thirteenth Amendment and the right "to vote free of racial discrimination" conferred by the Fifteenth Amendment. The federal government could protect the latter set of rights against interference by private as well as state actors. Collins, supra note 9, at 1990-93.

Brandwein fastened on the "inaction as well as action" language in Bradley's letter to Woods and his distinction between preexisting and conferred rights to suggest that several Reconstruction-era constitutional decisions by the Supreme Court can be understood as pivoting on what she calls the concept of "state neglect" (inaction that caused the denial of civil rights) and the "Fifteenth Amendment exception" (the view that the right to vote free of racial discrimination could be protected against private as well as state action). Brandwein, Rethinking Reconstruction, supra note 9, at 12-17. She maintained that "a new understanding of the judicial settlement of Reconstruction" emerges from a focus on those concepts. Id. at 17.

I agree with each of those scholars that a distinction between "secured" and "created" civil rights (to use terminology employed by contemporaries) and a recognition that a state's infringement of civil rights could arise from inaction as well as action were crucial to the constitutional jurisprudence of the Reconstruction era. My primary purpose in emphasizing those features, however, is to demonstrate the fluidity of the category of civil rights, and the abiding concern of Supreme Court justices with retaining something like the antebellum relationship between state and federal power, in that period.

(83.) See discussion supra Part I.

(84.) See generally Rutherglen, supra note 29, at 74.

(85.) Cruikshank, 25 F. Cas. at 712.

(86.) Id.

(87.) Id. at 710.

(88.) Id. For more detail, see Collins, supra note 9, at 1992-94; Brandwein, Rethinking Reconstruction, supra note 9, at 94-101.

(89.) My analysis of Bradley's Cruikshank opinion is indebted to Collins, supra note 9, at 1990-95; and to Brandwein, Rethinking Reconstruction, supra note 9, at 94-101.

(90.) Collins, supra note 9, at 1990-91. See also Brandwein, Rethinking Reconstruction, supra note 9, at 97-98.

(91.) Brandwein, Rethinking Reconstruction, supra note 9, at 95, 99; Collins, supra note 9, at 1991-92.

(92.) 25 F. Cas. at 713.

(93.) Id. at 711.

(94.) See Brandwein, Rethinking Reconstruction, supra note 9, at 98102.

(95.) Cruikshank, 25 F. Cas. at 710.

(96.) Id.

(97.) See Brandwein, Rethinking Reconstruction, supra note 9, at 9798; Collins, supra note 9, at 1991.

(98.) Brandwein, Rethinking Reconstruction, supra note 9, at 101-02.

(99.) Cruikshank, 25 F. Cas. at 712.

(100.) Brandwein, Rethinking Reconstruction, supra note 9, at 98-100; Collins, supra note 9, at 1992.

(101.) The defendants in Cruikshank had been indicted under Section 6 of the Enforcement Act of 1870, designed to enforce the Fifteenth Amendment. That section made it a felony for two or more persons to conspire to "injure, oppress, threaten, or intimidate any citizen with intent to prevent or hinder his free exercise and enjoyment of any right or privilege granted or secured to him by the Constitution or laws of the United States." 16 Stat. 140, 141. Because Bradley found that section "not confined to cases of [racial] discrimination," he concluded it was "not supported by the constitution." Cruikshank, 25 F. Cas. at 715.

(102.) 92 U.S. 542 (1876).

(103.) Leonard W. Levy, United States v. Cruikshank, in Leonard W. Levy et al., 2 Encyclopedia of the American Constitution 733 (2d ed. 2000).

(104.) The term was coined by Pamela Brandwein in Brandwein, Rethinking Reconstruction, supra note 9, at 14. It describes Bradley's conclusion in his 1871 letter to Woods that the federal government could violate citizens' civil rights by inaction, previously noted by Nelson, supra note 9, at 196, and Collins, supra note 9, at 1985-86, 1988-95. See also Harold M. Hyman & William M. Wiecek, Equal Justice Under Law 435-36 (1982) (hereinafter Equal Justice Under Law) ("[T]he federal government had both a right and a duty under the Thirteenth and Fourteenth Amendments to reach into states in order to inhibit the actions of state officials or individuals intended to deprive citizens of ... rights.") and Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. Rev. 863, 919, 937 (1986) (noting that state infringement of civil rights could come from "inaction" as well as "action").

(105.) 25 F. Cas. at 712.

(106.) Collins, supra note 9, at 1995.

(107.) U.S. Const, art. I, [section] 4, cl. 1.

(108.) See Brandwein, Rethinking Reconstruction, supra note 9, at 108-26.

(109.) The cases were United States v. Blackburn, 24 F. Cas. 1158 (C.C.W.D. Mo. 1874) (No. 14,603) (Judge Arnold Krekel); Charge to Grand Jury--Civil Rights Act, 30 F. Cas. 1005 (C.C.W.D. Tenn. 1875) (No. 18,260) (Judge Halmer Emmons); and [unnamed case from Oct. 1874], (reported in New York Times, Oct. 24, 1874, at p. 1 and also in Chicago Tribune, Oct. 24, 1874, at p. 7) (Judge Bland Ballard).

(110.) 92 U.S. 214 (1876).

(111.) E.g., Leonard W. Levy, Reese v. United States, in Leonard W. Levy et al., 5 Encyclopedia of the American Constitution 2145 (2d ed. 2000) ("The Supreme Court crippled the attempt of the federal government to protect the right to vote and made constitutionally possible the circumvention of the Fifteenth Amendment ....").

(112.) 92 U.S. at 218.

(113.) Both passages are discussed in Brandwein, Rethinking Reconstruction, supra note 9, at 123, 125.

(114.) 92 U.S. at 218.

(115.) Id.

(116.) The clause provides that states may elect the times, places, and manner of holding elections for Senators and Representatives, but Congress may alter these regulations. U.S. Const, art. I, [section] 4, cl. 1.

(117.) Taft's circular was reprinted in the New York Times, Sept. 5, 1876, at p.2. Brandwein, Rethinking Reconstruction, supra note 9, at 130-39, calls attention to the circular as evidence that the Grant administration had picked up on Bradley's and Waite's suggestions about the role of Article I, Section 4 in voting rights cases.

(118.) Brandwein, Rethinking Reconstruction, supra note 9, at 133, argues that "Waite had signaled [the] availability [of the Article I, Section 4 argument]. So had Bradley. Taft was.... taking [the Court's] cue." Although Taft might have noted those "signals," as Attorney General of the United States, he was in a position to pay attention to constitutional provisions affecting voting in federal elections.

(119.) See id. at 144-51.

(120.) 25 F. Cas. 213 (C.C.D.S.C. 1877) (No. 14,700). Butler had received comparatively little attention from scholars before Brandwein, who discusses it in Brandwein, Rethinking Reconstruction, supra note 9, at 145-47. After Waite's charge to the jury, it deadlocked, presumably along racial lines, resulting in no conviction. For more detail, see Lou Faulkner Williams, Federal Enforcement of Black Rights in the Post-Redemption South: The Ellenton Riot Case, in Local Matters: Race, Crime, and Justice in the Nineteenth-Century South 172-89 (Christopher Waldrep & Donald G. Nieman eds., 2001).

(121.) 25 F. Cas. at 223-24.

(122.) 100 U.S. 371 (1879).

(123.) Id. at 394-95, 399.

(124.) 110 U.S. 651 (1884).

(125.) Id. at 665-66.

(126.) Id. at 665.

(127.) Id. at 663-64.

(128.) In addition to Foner, supra note 8, evidence of this view can be found in Equal Justice Under Law, supra note 104, at 493, and Kaczorowski, supra note 9, at 187.

(129.) As she puts it, "The two-pronged voting rights jurisprudence elaborated between 1877 and 1884 rested on the Fifteenth Amendment and Article I, Section 4. State action limitations did not apply." Brandwein, Rethinking Reconstruction, supra note 9, at 144-45.

(130.) Id.

(131.) 83 U.S. 36 (1873).

(132.) 109 U.S. 3 (1883).

(133.) See Harold M. Hyman, Slaughterhouse Cases, in Levy et al., 5 Encyclopedia op the American Constitution 2423 (2d ed. 2000) ("[Justice Samuel] Miller separated federal from state privileges and immunities. He assigned to the states the definition of ordinary marketplace relationships essential to the vast majority of people. More important, he assigned to state privileges and immunities all basic civil liberties and rights, excluding them from federal protection. Miller's sweeping interpretation relegated everyone, including Negroes, who had assumed that the Fourteenth Amendment had assigned the federal government the role of 'guardian democracy' over state-defined civil rights, to the state governments for effective protection."). See also Leonard W. Levy, Civil Rights Cases, in Levy et al., 2 Encyclopedia of the American Constitution 408 (2d ed. 2000) ("[The Court's opinion] had the effect of reinforcing racist attitudes and practices, while emasculating a heroic effort by Congress and the President to prevent the growth of a Jim Crow society. The Court also emasculated the Fourteenth Amendment's enforcement clause, section five.").

(134.) Although the emphasis in my discussion of the Slaughter-House Cases and the Civil Rights Cases differs from Brandwein's analysis, we are both suggesting that the typology of civil rights present in Bradley's Cruikshank opinion can be seen in the opinions in both of those cases. See Brandwein, Rethinking Reconstruction, supra note 9, at 57-58, 163-65.

(135.) See Ronald M. Labbe & Jonathan Lurie, The Slaughterhouse Cases 17-102 (2003); Michael A. Ross, Justice of Shattered Dreams 189-99 (2003).

(136.) Labbe & Lurie, supra note 135, at 211-21; Ross, supra note 135, at 200-04.

(137.) There is considerable evidence that the framers of the Fourteenth Amendment were concerned about the restriction of Bill of Rights guarantees by Southern states in the antebellum years, and thus anticipated that the Privileges and Immunities Clause of the Fourteenth Amendment would be interpreted as incorporating many of those guarantees and applying them against the states. See generally Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (1986). See also the comment by John Bingham in the course of debates over the Fourteenth Amendment, declaring that "[t]here was a want hitherto, and there remains a want now, in the Constitution of our country, which the proposed amendment will supply. What is that? It is the power ... to protect by national law the privileges and immunities of all the citizens of the Republic and the inborn rights of every person within its jurisdiction." Cong. Globe, 39th Cong., 1st Sess., 2542 (1866). Additional comments along the same lines can be found in Foner, supra note 8, at 228-80.

(138.) 83 U.S. (16 Wall.) at 71.

(139.) Id. at 71-72

(140.) Id. at 70.

(141.) Id.

(142.) Id. at 71.

(143.) Id.

(144.) Id.

(145.) Id. at 70.

(146.) Id. at 71.

(147.) Id. at 81.

(148.) Id.

(149.) Id.

(150.) Id. ("It is so clearly a provision for that race and that emergency that a strong case would be necessary for its application to any other.").

(151.) Id. at 77. In contrast, Justice Bradley thought that among the "privileges and immunities" included in the Fourteenth Amendment were those enumerated in the first eight amendments to the Constitution. Id. at 118-19 (Bradley, J., dissenting).

(152.) See, supra Part IV.A-C.

(153.) 6 F. Cas. at 552.

(154.) See The Civil Rights Cases, 109 U.S. 3 (1883); United States v. Cruikshank, 92 U.S. 542 (1875).

(155.) 83 U.S. at 77-78.

(156.) Id. at 81.

(157.) Id.

(158.) Id.

(159.) That reading of the passages is consistent with Miller's belief, expressed in correspondence with his brother-in-law William Pitt Ballinger, a resident of Texas, that Southern states were not enforcing laws protecting the secured rights of their citizens when the parties seeking protection under the laws were African American. "Show me a single white man," Miller wrote Ballinger, "that has been punished in a State court for murdering a negro.... Show me that any public meeting has been had to express indignation at such conduct. Show me that you or any of the best men of the South have gone ten steps to prevent the recurrence of such things." Letter from Justice Samuel Miller to William Pitt Ballinger (Feb. 6, 1867) (quoted in Ross, supra note 135, at 147).

(160.) There were vigorous dissents in the Slaughter-House Cases by Justices Field, Bradley, and Swayne, with Chase concurring in Field's dissent. 83 U.S. at 83-129. But the areas of disagreement between Miller and the dissenting justices centered on their interpretations of the Privileges and Immunities Clause and Due Process Clause, both of which, in the view of the dissenters, provided support for protection of the right to pursue a lawful calling (butchery) without interference by a state. None of the dissenting opinions openly disagreed with Miller's concern about the federal government and the federal courts becoming "perpetual censors" on the states, or all "civil rights" becoming national rights, nor did any of them reject his claim that the federal government could intervene under the Equal Protection Clause when states declined to afford black citizens their "secured" civil rights. Id.

(161.) See, e.g., C. Peter Magrath, Morrison R. Waite: The Triumph of Character 132-34 (1963); Equal Justice Under Law, supra note 104, at 497-500.

(162.) 109 U.S. at 26.

(163.) See Rutherglen, supra note 29, at 88.

(164.) Id. at 89.

(165.) Id. at 90.

(166.) Cong. Globe, 42nd Cong., 2nd Sess., 728 (1872) (remarks of Senator Sumner).

(167.) See Rutherglen, supra note 29, at 90.

(168.) Id. at 89.

(169.) The memorandum from the Joseph Bradley Papers is quoted in Charles Fairman, Reconstruction and Renuion, 1864-1888: Part Two 564 (1987).

(170.) 109 U.S. 1, 22 (1883). Rutherglen demonstrates that the distinction between civil and social rights was present in the debates over both the Civil Rights Act of 1866 and the Civil Rights Act of 1875. See Rutherglen, supra note 29, at 52, 89. Brandwein has argued that the distinction was central in the latter set of debates and that it was understood as having different federalism implications by Bradley and Justice John Marshall Harlan in the Civil Rights Cases. See Brandwein,

(171.) 109 U.S. at 24.

(172.) Id. at 25.

(173.) Id. at 59.

(174.) Id.

(175.) Id. at 59-60.

(176.) Id. at 25.

(177.) Id. at 59.

(178.) Id. at 11.

(179.) Id. at 18.

(180.) Id. at 11.

(181.) Id.

(182.) Id. at 19.

(183.) Id. at 18-19.

(184.) Id. at 12-15.

(185.) Id.

(186.) Id. at 11.

(187.) Id. at 13.

(188.) Id. at 15.

(189.) Id. at 20.

(190.) Id. at 21.

(191.) Brandwein, Rethinking Reconstruction, supra note 9, at 173-78, adds another issue to which Bradley's rhetoric might have been directed: the idea that the Civil Rights Act of 1875 might have been thought of as "special legislation," singling out African Americans for protection against discrimination in public accommodations where Jews and Irish were not comparably protected.

(192.) 109 U.S. at 23.

(193.) Id. at 24.

(194.) Id. at 25.

(195.) Id.

(196.) [section] 1, 14 Stat. 27.

(197.) Id.

(198.) See supra Part III.C.

(199.) Brandwein, Rethinking Reconstruction, supra note 9, at 15.

(200.) Brandwein, Judicial Abandonment of Blacks?, supra note 9, at 352-57, and Brandwein, Rethinking Reconstruction, supra note 9, at 161-67, recognize this point.

(201.) 109 U.S. at 20.

(202.) Id. at 18.

(203.) Id. at 17.

(204.) Id.

(205.) Id. at 16.

(206.) Id.

(207.) Id. at 21-25.

(208.) Brandwein, Judicial Abandonment of Blacks?, supra note 9, at 352-57, and Brandwein, Rethinking Reconstruction, supra note 9, at 162 65, read Bradley's opinion in the same fashion.

(209.) 109 U.S. at 17.

(210.) Id. at 22.

(211.) Id.

(212.) It is worth noting here how this understanding of equal access to public accommodations as a "social right" rather than a fundamental civil right, and of the practice of denying free persons of color equal access to public accommodations in the antebellum period, might have served to validate the practice of racial segregation on railroad cars that the Court upheld in Plessy v. Ferguson, 163 U.S. 537 (1896). One might recall Bradley's 1876 memorandum, in which, after reciting the Privilege or Immunities and Equal Protection Clauses of the Fourteenth Amendment, asked, "[I]s it a privilege and immunity of a colored citizen to ride and sit by the side of white persons?" and "[A]re [blacks] denied [the equal protection of the laws] when they are required to ride and sit and eat by themselves, and not with whites?" See supra note 169 and accompanying text. Elsewhere in the memorandum, Bradley had said that "it never can be endured that the white shall be compelled to eat and lodge and sit with the negro .... The antipathy of race cannot be crushed and annihilated by legal enactment." Id. Brandwein, however, takes the view that the doctrinal connections between the Civil Rights Cases and Plessy were tenuous, and required some additional steps on the part of the Court. See Brandwein, Rethinking Reconstruction, supra note 9, 187-88.

(213.) 109 U.S. 3 (1883).

(214.) Id. at 59.

(215.) See supra Part III.C.2.

(216.) "Indians not taxed," which included most members of Native American tribes living on reservations, were not regarded as citizens of the United States until 1924 and were not allowed to vote in several states as late as the 1970s. See Frank Pommersheim, Broken Landscape: Indians, Indian Tribes, and the Constitution 164-81 (2009).

(217.) 109 U.S. at 22.

(218.) See supra Part I.

(219.) See [section] 1, 14 Stat. 27; 109 U.S. at 17-18.

(220.) Compare Civil Rights Cases, 109 U.S. 3 (1883) with Corfield v. Coryell, 6 F. Cas. 546 (C.C.E.D. Pa. 1823).

(221.) The memorandum from the Joseph Bradley Papers is quoted in Charles Fairman, Reconstruction and Reunion, 1864-1888: Part Two 564 (1987).

(222.) Id.

G. Edward White, David and Mary Harrison Distinguished Professor of Law, University of Virginia School of Law. My thanks to Michael Collins, Kurt Lash, and George Rutherglen for their comments on earlier drafts of the article.
COPYRIGHT 2014 Case Western Reserve University School of Law
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 2014 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:III. The Judicial Fashioning of Enforcement Rules for Civil Rights Cases B. United States v. Reese through Conclusion: A Revised Narrative of the Origins of Civil Rights, with footnotes, p. 787-816
Author:White, G. Edward
Publication:Case Western Reserve Law Review
Date:Mar 22, 2014
Words:16352
Previous Article:The origins of civil rights in America.
Next Article:The Supreme Court's treatment of same-sex marriage in United States v. Windsor and Hollingsworth v. Perry: analysis and implications.
Topics:

Terms of use | Privacy policy | Copyright © 2021 Farlex, Inc. | Feedback | For webmasters |