Private: Through A Glass Darkly: The Supreme Court, Reconstruction Amendments, and Civil Rights

This post is part of an ACSblog Constitution Week Symposium. The author, Aderson Bellegarde François, is a law professor at Howard University and Supervising Attorney for the law school’s civil rights clinic.

Between 1866 and 1875, in the wake of the ratification of the 13th, 14th, and 15th Amendments to the United States Constitution, the Reconstruction Congress enacted five civil rights statutes that were not only extraordinarily forward-thinking for their time but, in many ways, were far more advanced than much of what now passes for modern civil rights law: the Freedmen’s Bureau Act of 1866, the Civil Rights Act of 1866, the Civil Rights Act of 1870, the Civil Rights Act of 1871, and the Civil Rights Act of 1875.  

The Freedmen’s Act, among other things, established a social welfare agency for newly freed slaves. The 1866 Act stated, among other things, that all persons born within the United States were citizens of the United States and that, without regard to color, all such persons were entitled to the right to enter into contracts, sue, present evidence in court, buy, hold and sell property, and entitled to all the benefits of the laws enjoyed by white persons; it also provided that any person who under color of state law caused such civil right to be violated would be guilty of a federal offense. The 1870 Act added criminal penalties for deprivation of the rights enumerated under the 1866 Act; it affirmed the right to vote without regard to color, criminalized any interference with that right, and authorized use of federal troops to police polls in the South; and it made it a felony for any person to conspire to intimidate any citizen with the intent to prevent the free exercise or enjoyment of any federal right. The 1871 Act, passed after President Grant reported to Congress that widespread vigilante violence against blacks had led to virtual anarchy in many Southern states, provided for civil and criminal penalties for the deprivation of rights by persons acting under color of state law. Lastly, the 1875 Act required equal access in all places of public accommodation to all persons without regard to race, color or other previous condition of servitude and, with the recent passage of the Judiciary Act of 1875, which for the first time created “arising under” jurisdiction in the lower federal courts, the Act also granted federal courts exclusive jurisdiction of cases arising under the statute.

In the years following their passage, the Supreme Court, in decisions such as Blyew v. United States, United States v. Cruishank, The Civil Rights Cases, United States v. Harris, Hodges v. United States, and United States v. Reese, eviscerated virtually every single one of these statutes by finding significant portions of them unconstitutional. Among the Court’s Reconstruction and post Reconstruction civil rights pronouncements none has had a greater and more lasting impact than its holding that under the 14th Amendment Congress does not have the power to reach private action even when such action results in a denial of due process or equal protection of the laws. As Justice Bradley wrote for the majority in The Civil Rights Cases: “it is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment.” But Chief Justice Vinson put it even more plainly in a concurring opinion stating that the 14th Amendment was intended to govern “only such action as may fairly be said to be that of the States. That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” 

The catalogue of legal and social consequences that flowed and continue to flow from the Court’s Reconstruction jurisprudence is long and appalling: By invalidating every major enforcement mechanism contained in the Acts, these decisions rendered civil rights enforcement wholly ineffective such that even today, like the pale light of a long ago exploded star, only a few of these statutes remain as part of modern civil rights law – some, like 42 U.S.C. 1983, perhaps more effective than others, but all in one way or another, mere shadows of what Reconstruction legislators intended. By providing a legal pass to private actions that were not merely discriminatory but were quite literally meant to keep blacks in a state of near slavery and, failing that, mark them as social, biological, economic, political inferiors in the country’s racial caste system, the decisions served as an intellectual lodestar for racial apartheid. By reading the 13th and 14th Amendments as requiring nothing more than nominal freedom and formal equality, these decisions consigned generations of blacks to daily terror and violence. By narrowly interpreting legislative and executive Reconstruction power, the decisions paved the way for the political branches to withdraw from the field of substantive civil rights enforcement for nearly a century. And, by filtering the Reconstruction Amendments through the orthodox political philosophy that state power to correct anti-egalitarian private behavior cannot rest on 14thAmendment egalitarian principles, these decisions ultimately led to the morally suspect doctrine that discriminatory private behavior is intolerable only if Congress deems that it offends interstate commerce.

And yet, for all of the incalculable damage the Court’s Reconstruction Jurisprudence has visited upon the cause of civil and human rights, perhaps the one stain that may yet remain indelible is the notion upon which all of these decisions ultimately rest that civil rights are the moral equivalent of special rights and that, no matter how formerly (and presently) persecuted or despised, racial minorities would do well to recognize when the time has come to just move on. Thus, less than twenty years after the end of the Civil War, Justice Bradley writing for the majority in The Civil Rights Cases lectured black plaintiffs who had been denied access to public accommodations not to hide behind  the federal government to vindicate their civil rights because: 

When 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 progress of his elevation when he takes the rank of a mere citizen, and ceases to be the special favorite of the laws, and when his rights as a citizen, or a man, are to be protected in the ordinary modes by which other men's rights are protected.

And, barely a few years later, in Hodges v. United States, a 1906 decision, in which an armed mob of white men nearly lynched a group of black applicants at a whites-only sawmill, the Court found it inappropriate for Congress to make the attempted lynching a federal crime because:

At the close of the Civil War, when the problem of the emancipated slaves was before the nation, it might have left them in a condition of alienage, or established them as wards of the government, like the Indian tribes, and thus retained for the nation jurisdiction over them, or it might, as it did, give them citizenship.. .Whether this was or was not the wiser way to deal with the great problem is not a matter for the courts to consider. It is for us to accept the decision, which declined to constitute them wards of the nation or leave them in a condition of alienage where they would be subject to the jurisdiction of Congress, but gave them citizenship, doubtless believing that thereby in the long run their best interests would be subserved, they taking their chances with other citizens in the states where they should make their homes.

Given that the Supreme Court was admonishing blacks to “get over it and move on” barely twenty years after the Civil War ended over two centuries of slavery, the notion that robust enforcement of federal civil rights law is tantamount to special rights was always more of an idée fixe than a defensible moral philosophy. Yet that idea, born out the ashes of Reconstruction, impervious to historical evidence, and used time and time again to excuse all manner of racial apartheid, violence and inequality, has become the lens through which, as through a glass darkly, we look upon civil rights and, in that way, perhaps remains the most enduring cultural legacy of the Supreme Court’s interpretation of the Reconstruction Amendments and civil rights statutes.

Civil rights, Constitutional Interpretation, Equality and Liberty, Racial Justice, Supreme Court