A Lost Jurisprudence of the Reconstruction Amendments

Abstract

A Lost Jurisprudence of the Reconstruction Amendments PAMELA BRANDWEIN The Conventional Story Reconstruction, ofcourse, was America’s Second Revolution. The Thirteenth Amend­ ment abolished slavery and there was going to be, in Lincoln’s words, “a new birth of freedom.” But, according to conventional legal-historical wisdom, Reconstruction was dead by 1877; the fatal blow was inflicted by the Supreme Court and the weapon was “state action” doctrine.1 Now the state action doctrine holds that the rights guaranteed by the Fourteenth and Fifteenth Amendments are protected against the government only. And one gets this from the text ofthe Amendment. Section One reads, in part, “No State shall... deny to any person within its jurisdiction the equal protection of the laws.”2 In this regard, it is important to recognize that a distinction is needed between state action and private action to get the amend­ ment offthe ground, to make it usable.3 And a distinction can be seen between state action and private action in canonical statements of state action doctrine that come from the Civil Rights Cases in 1883.4 “The first section of the Fourteenth Amendment,” stated the Court, “is prohibitory in its character, and prohibitory upon the States.”5 Likewise, “It is State action ... that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.”6 And so these statements show a general distinction. The conventional view, however, is that state action doctrine put a major problem outside the reach of the Fourteenth and Fifteenth Amendments—the problem of unpunished Kian violence. Unpunished white supremacist violence and intimidation was rampant across the South. Kian violence was the major form of resistance to Recon­ struction after the first effort to resist emancipation—passage of the Black Codes of 1865-66—was rebuked by Republicans.7 But according to the conventional story, the state’s failure to punish the Kian—the unequal enforcement of the law—was not “state action” within the meaning of the Fourteenth and Fifteenth Amendments. According to standard wisdom, the state action doctrine designated violence by private individuals as private action, under 330 JOURNAL OF SUPREME COURT HISTORY all circumstances, which could never be punished under those amendments. And so, under this reading, it makes sense to see state action doctrine as handcuffing the federal government and defeating Reconstruction.8 There are a number of reasons for thinking that this conventional story is plausible. First, there are the outcomes of the state action cases. A brutal massacre was committed by private individuals (Klansmen) in United States v. Cruikshank^ Nobody was punished. There were exclusions of blacks from public accommodations by private individuals in the Civil Rights Cases. Again nobody was punished. There were also a number of decisions during this time that invalidated Reconstruction-era statutes.10 With all these outcomes, the Court looked unfriendly to Reconstruction.11 Second, the Court offered no broad statement about equality under law in the state action cases. There never was a strong endorsement of black rights in these cases, and not even the facts were given in Cruikshank, which involved a bloody and cold-blooded massacre. Third, there was gratuitous racism from Justice Joseph P. Bradley in the Civil Rights Cases. This was the canonical state action case that invalidated the public accommoda­ tions provisions of the Civil Rights Act of 1875. In his majority opinion, Justice Bradley was contemptuous of the public accommo­ dations rights claims and he cast blacks as “the special favorite of the laws.”12 Fourth, there is a historical account ofthe “Compromise of 1877.” According to histo­ rian C. Van Woodward, author of that account, Republicans and Democrats struck a deal in the aftermath ofthe disputed election of 1876. Republicans would get the presi­ dency and control of national economic policy. Democrats would get control over the former slaves and “home rule.” Van Woodward represented the Compromise as a falling curtain, and Reconstruction is said to end in 1877. With Van Woodward’s account, it looks as if the Supreme Court gave a narrow construction to “state action” doctrine, and it looks as if they were consolidating the political abandonment of blacks by the Republican Party.13...