To Begin the Nation Anew: Congress, Citizenship, and Civil Rights after the Civil War

Abstract

IN 1857, THE HIGHEST COURT IN THE UNITED STATES HELD THAT BLACKS in America possessed no rights, could never become citizens of the United States, and that Congress was powerless to abolish slavery.' In the aftermath of these pronouncements, this country fought one of the bloodiest wars in its history. Fewer than ten years after the Dred Scott decision, however, Congress and the Northern states accomplished precisely what the Supreme Court declared could not be done, through constitutional amendments and a civil rights statute. The Thirteenth Amendment abolished slavery everywhere in the United States. The Civil Rights Act of 1866 and the Fourteenth Amendment conferred citizenship on and secured the civil rights of all qualified, natural-born, and naturalized Americans, including former slaves and free blacks. The statute declared illegal infringements of certain civil rights made under the prextext of law or custom and authorized the removal of civil and criminal cases from the state to the federal courts whenever Americans were unable to enforce their rights in the state systems ofjustice. The Fourteenth Amendment also expressly prohibited the states from infringing the rights that Americans enjoyed as citizens of the United States and their rights to due process and equal protection of the law. The meaning and scope of the Thirteenth and Fourteenth Amendments and the Civil Rights Act of 1866 have been almost as controversial among twentiethcentury scholars as they were among the participants in Reconstruction. In 1947, Supreme Court Justice Hugo Black sparked a debate over the scope of a national authority to enforce civil rights when he held that the Fourteenth Amendment conferred on the national government the power to protect the Bill of Rights against state infringements.2 Charles Fairman quickly wrote a rebuttal, in which he insisted that the congressional framers intended to secure only an equality in state law among the few rights enumerated in Section 1 of the Civil Rights Act, a view he continued to maintain. William Crosskey published a rejoinder to Fairman,