Reconstruction and the Supreme Court

DATE: 1867-1877

DESCRIPTION: Post-Civil War period during which the Republican-controlled Union government took control of former Confederate state governments and tried to force the southern states to grant African Americans equal rights.

SIGNIFICANCE: Reconstruction gave the Supreme Court a unique opportunity to extend full constitutional rights and protections to African Americans. Instead, however, the Court’s conservatism merely worked to undermine congressional Reconstruction plans.

After the Civil War ended in early 1865, the US government faced fundamental constitutional questions. That the Union was indestructible and states had no right to secede had been settled on the battlefield. However, the relation of the former Confederate states to the Union was unsettled, and the meaning of freedom for the formerly enslaved people remained at issue. Wresting control of Reconstruction from President Andrew Johnson, who was overly eager for reconciliation with the unrepentant White South, the Republican-controlled Congress passed a series of measures designed to secure a broad nationalization of civil rights and establish a rule of law strong enough to protect Black Americans in the long term.

The Beginnings of Reconstruction

While there is no debate about when Reconstruction ended with the 1877 inauguration of President Rutherford B. Hayes, many dates have been assigned to its beginnings.

Many members of Congress initially believed that the Thirteenth Amendment (1865), which abolished slavery and empowered Congress to enforce its provision with appropriate legislation, would provide sufficient constitutional support for the freed people. However, it soon became evident that northerners and southerners held fundamentally different assumptions about what freedom meant.

When the southern states enacted discriminatory laws, the notorious black codes designed to keep African Americans in slave-like conditions, Congress imposed further restrictions on the recalcitrant South. In early 1866, Congress passed the Civil Rights Act, which guaranteed basic legal rights to formerly enslaved people. President Andrew Johnson vetoed the bill, but Congress overrode his veto. In June, Republican leaders in Congress proposed the Fourteenth Amendment, which would define African Americans as citizens and mandate that all federal and state laws apply equally to all citizens. President Johnson urged the states to reject it (which all former Confederate states except Tennessee did), but the Fourteenth Amendment was finally ratified two years later, in 1868. A third “Civil War amendment,” the Fifteenth, was proposed in 1869. Ratified the following year, it outlawed denying any citizen the right to vote because of race.

Meanwhile, in 1867, Congress passed a series of laws called the Reconstruction Acts. These laws abolished the South’s newly formed state governments and placed every former Confederate state, except Tennessee, a military district governed by federal troops, under martial law. States wishing to qualify for readmission to the Union were required to write new constitutions that would allow for Black suffrage. They also had to ratify the Thirteenth and Fourteenth Amendments and democratically elect new state governments. Black voters participated in every step of this process. By 1870, all southern states were readmitted to the Union under reconstituted state governments. However, White southerners never recognized the legality of their integrated state governments.

Nightriders of the Ku Klux Klan terrorized Black voters despite the ratification of the Fifteenth Amendment (1870). Congress responded in 1870, and again in 1871, with enforcement acts designed to stop Klan violence and enforce the Fourteenth and Fifteenth Amendments against private acts of violence, as well as illegal state actions. Responsibility for interpreting these new amendments and the laws that supported them eventually fell on the US Supreme Court.

Constitutional Issues

The fact that the three Civil War amendments brought about changes in the federal system was evident. However, the exact nature of those changes was less clear. For example, the question of precisely which privileges and immunities national citizenship conveyed remained. It was unclear whether the Fourteenth Amendment “nationalized” the Bill of Rights, making its provisions applicable to the states as well as to the federal government.

It was also unclear whether the national government was empowered to protect Black citizens against private interference with their rights. Other questions included whether the Fourteenth Amendment’s state action provision limited federal intervention to cases involving statutory discrimination. Was segregation a remnant of slavery outlawed by the Thirteenth Amendment? Did the Fifteenth Amendment provide a positive right to vote? These constitutional issues found their way into the lower federal courts and made their way to the Supreme Court at a time when most northerners had tired of southern questions. The Court’s conservative, formalistic answers to these questions effectively eroded the constitutional rights of African Americans living in the South. By the end of the nineteenth century, their future was firmly under the control of White southerners.

Fourteenth Amendment Controversies

The Supreme Court first articulated its interpretation of the Fourteenth Amendment in the landmark Slaughterhouse Cases (1873). Ironically, these cases involved neither African Americans nor the US government itself as parties. For this reason, the Court was able to construe the Fourteenth Amendment apart from the potentially explosive racial issues of Reconstruction. The cases themselves originated in Louisiana, where the state legislature had granted a meat-slaughtering monopoly in New Orleans, threatening to drive all other butchers out of business. A group of White butchers hurt by this monopoly brought suit, claiming that the monopoly denied them their equal privileges and immunities under the Fourteenth Amendment.

Slaughterhouse presented an opportunity for the Court to recognize that the Fourteenth Amendment had radically altered the federal system, making the US government responsible for protecting the rights of all citizens. However, it was not to be. Justice Samuel F. Miller, speaking for a closely split majority, chose a rigidly narrow interpretation that adhered to a traditional understanding of dual federalism the notion that state and federal government were sovereign in their separate spheres. National citizenship and state citizenship were separate and distinct, according to Slaughterhouse, and only the privileges and immunities of national citizenship could be protected by the United States. The states were still responsible for protecting the basic day-to-day rights of their own citizens. The Slaughterhouse precedent seriously limited the protections of the Fourteenth Amendment for African Americans, who had hoped to find a federal shelter under the Fourteenth Amendment when the governments of the southern states refused to protect their rights.

The Court’s ruling in United States v. Cruikshank in 1876 continued to narrow the scope of rights that federal courts could protect under the Fourteenth Amendment. Cruikshank involved a race riot in Louisiana, in which perhaps a hundred Black Republicans were killed by White Democrats. Closely following Joseph Bradley’s circuit court opinion, Chief Justice Morrison R. Waite recently appointed by President Ulysses S. Grant announced that the Bill of Rights protected citizens only against actions of the national government. The due process clause, Waite declared, established protection “against arbitrary and unjust legislation,” but did not protect Black Americans from private acts of violence. United States v. Harris (1883) made more explicit the state-action concept implicit in Cruikshank by overturning portions of the Civil Rights Act of 1871 (also known as the Second Enforcement Act) because they punished private wrongs without reference to state law.

Fifteenth Amendment Issues

United States v. Reese (1876), a companion case to Cruikshank, construed the Fifteenth Amendment for the first time. Waite ruled that this amendment did not establish a positive right to vote but did establish a constitutional right not to be discriminated against because of race. Reese declared parts of the First Enforcement Act unconstitutional for overbreadth, while leaving standing sections of the law that explicitly prohibited voter discrimination because of race. This ruling enabled lower federal courts to continue to prosecute voter discrimination cases. Within a few years, however, the southern states devised other, allegedly nonracial, ways of disfranchising African Americans. These included poll taxes, grandfather clauses, and literacy tests.

Civil Rights Cases

The Civil Rights Cases (1883) tested the constitutionality of the Civil Rights Act of 1875, which made it a misdemeanor to deny equal access to privately owned places of business such as hotels, theaters, and public transportation. The five cases that made their way to the Supreme Court in 1883 originated in New York, California, Kansas, Missouri, and Tennessee, demonstrating that the issue of racial discrimination was not limited to former Confederate states in the South. Grounding his ruling in the state action concept of the Fourteenth Amendment, Joseph Bradley, speaking for an eight-person majority, declared the Civil Rights Act unconstitutional. The national government could not reach private wrongs under the Fourteenth Amendment; it was limited to cases of overtly discriminatory state law. The Court also ruled that the Thirteenth Amendment did not support the Civil Rights Act. Although there was no state-action limitation in the Thirteenth Amendment, segregation was not a “badge of slavery” prohibited by the amendment.

Justice John Marshall Harlan, a Kentuckian and a former slaveholder, was the only voice of dissent in the Civil Rights Cases. Harlan found ample authority for the Civil Rights Act in both the Thirteenth and Fourteenth Amendments. Segregation was a burden of slavery in Harlan’s mind; therefore, the Thirteenth Amendment’s enabling clause gave Congress authority to legislate against it. Moreover, Harlan read the Fourteenth Amendment broadly, finding authority there for the national government to protect the formerly enslaved people in all their rights.

Reconstruction-era Court Decisions

The Reconstruction-era Court clearly did not champion African American rights, but it did occasionally decide cases in their favor. In Ex parte Yarbrough (1884), for example, Justice Miller ruled that Congress had authority, under Article 1, Section 4 of the Constitution, to protect national elections without benefit of the Fifteenth Amendment. Thus, the national government retained broad powers to protect Black Americans in federal elections against both state officials and private individuals. Under this ruling, the federal courts continued to vigorously prosecute voting rights offenders through the 1880s.

In a series of jury cases, the Supreme Court again supported African American rights in cases of overt state action. Strauder v. West Virginia (1880), for example, overturned a state statute requiring all-White juries as a violation of the Fourteenth Amendment’s equal protection clause. Ex parte Virginia, decided the same term, upheld the prosecution of a state judge who had systematically excluded Black people from juries in his court. In Virginia v. Rives (1880), however, the Court ruled that the mere absence of African Americans on juries in situations in which no discriminatory state law existed did not demonstrate deliberate racial exclusion; the burden of proof was on the aggrieved parties. Southern states were quick to discern that this decision left room for exclusion that was implicit in the system rather than explicit.

Women and the Fourteenth Amendment

The Reconstruction-era court was even more conservative in addressing women’s rights issues than it was African American issues. Women who hoped to use the Fourteenth Amendment to overturn discriminatory state legislation were disappointed. In Bradwell v. Illinois (1873), Justice Miller ruled that the amendment’s equal protection clause did not remove gender restrictions for admission to the bar. Chief Justice Waite decreed in Minor v. Happersett (1875) that the amendment did not extend to women the right to vote.

Joseph Bradley, concurring in Bradwell, appears to have summed up the attitude of the Court in his later infamous observation that a woman’s “destiny and mission” is to be a wife and mother. While African Americans had made some progress under the Fourteenth Amendment, the status of women remained unchanged.

Conservatism vs. Racism

Even though the Reconstruction-era Court was not generous to African Americans, its rulings were grounded more in conservative adherence to traditional notions of dual federalism than in overt racism. While the Court insisted on a state-action theory of the Fourteenth Amendment, it moved to protect African American rights in cases of overt state action. Not until two decades after Reconstruction ended did the Court establish a judicial doctrine that explicitly sanctioned racial segregation.

Under Chief Justice Melville W. Fuller, the Court’s overtly racist Plessy v. Ferguson decision of 1896 upheld a Louisiana statute that outlawed racial mixing on railroad cars. Winking at the differences between black and white cars, Henry Brown for the Court established the notorious separate but equal doctrine, which the Court did not overturn until 1954. Again, as in the Civil Rights Cases, Harlan was the Court’s only voice of dissent. Harlan decried the “thin disguise of ’equal’ accommodations” and prophesied accurately that Plessy would eventually prove as damaging to the nation as the Court’s 1857 Scott v. Sandford decision.

The Supreme Court failed during Reconstruction to establish the constitutional rights of African Americans. The justices’ conservatism, racism, and formalistic readings of the law worked against extending federal protections to African Americans. However, it is essential to note that the justices reflected the racial and legal values of their era. The Court would not fully support African American rights until the Warren Court instituted what has been called the “second Reconstruction” era during the 1950s and 1960s.

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