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SCOTUS blog legal history post about the Supreme Court and civil rights in the late 19thC

The SCOTUS blog is having some posts about the U.S. Supreme Court and race.  One is a nice discussion of two decisions from the 19th Century limiting the scope of the Reconstruction Amendments by Robert Cottrol, a professor of law and history at George Washington University.  It begins:

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.

This paragraph particularly caught my eye.

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.”

It’s all worth reading.

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