The following essay for our Race and the Supreme Court program was written by Robert J. Cottrol, the Harold Paul Green Research Professor of Law and Professor of History and Sociology at the George Washington University.  He is the co-author of Brown v. Board of Education: Caste, Culture and the Constitution (University Press of Kansas, 2003).  He is currently working on a comparative legal history contrasting the role of law in constructing systems of slavery and racial hierarchy in the Americas.

Chances are if you went to law school sometime in the last half-century you absorbed a certain narrative about race and the Supreme Court.  The Court was the hero of that narrative.  Its 1954 decision in Brown v. Board of Education cut through the Gordian knot that had long stifled racial progress in the nation.  The decision, the first act of the new Warren Court, gave strength and heart to the postwar Civil Rights movement and ultimately courage to the political branches.  It helped precipitate a civil rights revolution, one in which the law went from being an active abetter of American-style apartheid, Jim Crow, to being the chief vehicle for attacking racial discrimination.  The Court's school desegregation decision would become exhibit A in the argument for a robust view of the judicial power.  The decision would also give the Supreme Court a moral authority that has increased in the ensuing decades with greater national acceptance of the 1954 decision.

That narrative is true as far as it goes.   And yet Brown and the undoubted boost that it gave to the cause of racial justice in postwar America have served to obscure an unpleasant truth.  If the Supreme Court played an important role in energizing the civil rights movement that has wonderfully transformed modern America, it also did much to thwart and ultimately doom an earlier civil rights revolution that came in the wake of the Civil War.  Two cases, United States v. Cruikshank (1876) and the Civil Rights Cases (1883) would largely curtail Congressional efforts to protect the newly emancipated black population through civil rights legislation.  The consequences would be severe.  The federal government would largely abandon civil rights protection for black people and other minorities for the better part of the twentieth century in no small part due to the Court's decisions in both cases.  The system of Jim Crow that defined much of American race relations in the twentieth century can be traced, in no small measure, to these two nineteenth-century Supreme Court decisions.

Cruikshank, the earlier case, probably had the more far-reaching consequences.  It began with the massacre of over 100 black men by an armed white mob in Louisiana.  The black men were going to the polls.  They were armed in anticipation of an attack.  Three members of the white mob were convicted of violating the civil rights of the black men under the Enforcement Act of 1870.   The members of the white mob had been charged, among other counts, with violating the First Amendment rights of the black men to peaceable assembly and with violating their Second Amendment right to bear arms.

The Court's opinion, authored by Chief Justice Morrison R. Waite, cut the legs out from under Congress's ability to protect the newly freed black population from the rising tide of white violence designed to intimidate black voters and drive them from the polls.  Cruikshank and the other defendants, the Waite opinion explained, were private citizens.  Under the federal system citizens were obliged to look to state government for protection from private parties, including private parties seeking to deprive them of constitutional rights.  The Waite opinion was a harkening back to the federalism of the antebellum era, one in which the federal government had little role in protecting the citizen.  The opinion largely overlooked the revolution in federalism that the Civil War Amendments were meant to bring about.  It also ignored considerable evidence, found in the text of the Thirteenth, Fourteenth, and Fifteenth Amendments, that Congress was meant to have strong, perhaps primary powers in enforcing the new amendments in fulfilling their purpose of eradicating the system of slavery and racial domination that had  brought the nation close to ruin.

Cruikshank's consequences would be far reaching.  Emboldened by the Court's dictate that the federal government could play only a limited role at best in curbing private violence against black citizens, white supremacists led by the Ku Klux Klan would use extra-legal violence to eliminate black voters as a significant force in southern politics.  That pattern would not begin to be reversed until after the Second World War.  And the Cruikshank decision would have far-reaching consequences beyond the ballot box.  The American South would become a place of open and notorious lawlessness.  Lynching was widespread in the region in the early part of the twentieth century.  The federal government provided little protection.  Chief Justice Waite's notions of the limits of federal power would be followed to an extreme.

The Waite Court's limited view of Congressional power was also reflected in Justice Joseph P. Bradley's majority opinion in the Civil Rights Cases. The cases pronounced provisions in the Civil Rights Act of 1875 that prohibited discrimination in public accommodations  unconstitutional.  Like Waite, Bradley saw the antebellum federalism which gave the national government little role in the citizen's life as essentially unaltered despite the Thirteenth and Fourteenth Amendments.  The new amendments gave Congress no enhanced powers.  The mission of eradicating slavery and its incidents provided no special warrant for this legislation. The former slaves, Bradley proclaimed, must cease "to be the special favorite of the laws."

But if Bradley saw no constitutional warrant for the 1875 statute, one dissenting justice did.  John M. Harlan, the former Kentucky slave owner who would later be immortalized as the great dissenter in Plessy v. Ferguson, argued for a broader view of the meaning of the recent emancipation.

I do not contend that the Thirteenth Amendment invests Congress with the authority, by legislation, to define and regulate the entire body of civil rights which citizens enjoy…[S]ince slavery…was the moving or principal cause of the adoption of that amendment, and since that institution rested wholly upon the inferiority, as a race, of those held in bondage, their freedom necessarily involved immunity from, and protection against all discrimination against them, because of their race, as in respect of such civil rights as belong to freeman of other races.

Harlan's broader view of what freedom entailed was rejected.  In both Cruikshank and the Civil Rights Cases, the Supreme Court thwarted far-reaching civil rights initiatives enacted by Congress.  The Court dealt a severe blow to the idea of national protection for civil rights in the nineteenth century.  The idea would have to be slowly and painfully reconstructed in the twentieth.

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