The origins of civil rights in America.

• Author: White, G. Edward
• Position: Introduction through III. The Judicial Fashioning of Enforcement Rules for Civil Rights Cases A. United States v. Cruikshank, p. 755-787

ABSTRACT

This Article makes three contributions. First, it represents the first sustained effort to identify and trace the origins of the legal category of civil rights in American constitutional jurisprudence. Contrary to conventional wisdom, the category of civil rights did not extend back to the Declaration of Independence or to the framing of the Constitution. There was no established category of "civil rights" in eighteenth- and early nineteenth-century American law, although one can find discussion of the "privileges and immunities" of citizens of the United States and occasional mention of the term "civil rights." The category only came into being with the passage of the Civil Rights Act of 18661 and received its first judicial interpretations in the context of the Reconstruction-era constitutional amendments. In the decades of the 1870s and 1880s, the category was refined, but there was never a clear consensus about the content or scope of civil rights, or the extent to which they could be enforced by the federal government.

Second, the Article follows the work of recent scholars, such as William Nelson, Michael Collins, and most prominently Pamela Brandwein, in seeking to revise a conventional narrative about the constitutional history of the Reconstruction era. That narrative asserts that Reconstruction began as a distinctly libertarian and egalitarian vision, premised on the creation of new universal rights of citizenship and enforcement of those rights by the federal government. It then claims that in the years between 1866 and the mid-1880s, that vision was derailed and the prospective rights of former African American slaves in former Confederate states largely abandoned. It assigns some responsibility for the abandonment of the original goals of Reconstruction to the Supreme Court of the United States in the tenures of Chief Justices Salmon Chase and Morrison Waite, emphasizing Court majorities' narrow readings of the Fourteenth Amendment's Privileges and Immunities and Equal Protection Clauses in the Slaughter-House Cases (2) and invalidation of the public accommodations provisions of the Civil Rights Act of 1875 (3) in the Civil Rights Cases. (4)

Finally, the Article has implications for a longstanding debate about the "original understandings" of framers of the Reconstruction Amendments, in particular whether the Fourteenth Amendment was originally understood as "incorporating" some of the provisions of the Bill of Rights against the states. The Article finds that the Court's Reconstruction-era civil rights jurisprudence was primarily driven by a concern that too-broad readings of the power of the federal government to enforce new civil rights would radically disturb the existing balance of state and federal powers. That concern, the Article suggests, emanated from an assumption on the part of the justices that the Privileges and Immunities and Equal Protection Clauses of the Fourteenth Amendment were capable of being read as robust definitions of the privileges and immunities of national citizenship and of a right to equal treatment under the law, both of which could be enforced by the federal courts. Precisely because of this assumption, Chase and Waite Court majorities sought to define the meaning of "privileges or immunities" (5) and "equal protection of the laws" (6) narrowly.

The Article concludes by maintaining that a proper understanding of the category of "civil rights" at its origin needs to take into account the fact that both the conceptualization and interpretation of the category were driven by established antebellum understandings about "rights" and federalism. The result was that instead of initially expansive definitions of new national civil rights being narrowed in the 1870s and 1880s, the category remained fluid and uncertain.

CONTENTS INTRODUCTION I. THE ANTEBELLUM LEGACY OF "RIGHTS" A. Corfield v. Coryell B. Luther v. Borden II. THE THIRTY-NINTH CONGRESS AND "CIVIL RIGHT" A. The Thirteenth Amendment B. The Civil Rights Act of 1866 C. The Fourteenth Amendment D. The Fifteenth Amendment.. E. Modifications of the Antebellum Legacy 1 Parties 2. The Federal Government as Enforcer of "Rights" III. THE JUDICIAL FASHIONING OF ENFORCEMENT RULES FOR CIVIL RIGHTS CASES A. United States v. Cruikshank B. United States v. Reese C. Federal Voting Rights Cases, 1877-1884 D. "Civil Rights" and the Slaughter-House and Civil Rights Cases 1. The Slaughter-House Cases 2. The Civil Rights Cases E. Implications CONCLUSION: A REVISED NARRATIVE OF THE ORIGINS OF CIVIL RIGHTS INTRODUCTION

We tend to think of "civil rights" as a ubiquitous category, encompassing a variety of freedoms and entitlements associated with being an American. We also tend to think of the heritage of civil rights as extending back to the Declaration of Independence, the framing of the Constitution, and the Magna Carta and ancient rights of English subjects. But in fact, civil rights, as a legal category, was imperfectly understood in the United States before the Civil War. It was only after three decades of legislation, court decisions, and commentary before the boundaries of the category were established.

This Article reviews that process. Sections II and III recover the dominant understandings about legal "rights" in antebellum American jurisprudence and the possible effect of the Civil Rights Act of 18667 and the Thirteenth, Fourteenth, and Fifteenth Amendments on those understandings. Those inquiries reveal that when the three Amendments and the Civil Rights Act of 1866 were enacted between 1865 and 1870, there was no widespread consensus about the content of "civil rights," nor about which institutions of government were to enforce those rights. The category of "civil rights," by which was meant rights that attached to all American citizens, was itself new: "rights" had not been understood in so universal a fashion before the Civil War. Thus the enactments collectively raised the possibility that a spate of new rights, associated with state and United States citizenship, had been created, and that the federal government could enforce them against states.

That possibility served as background to three decades of judicial decisions and legislative commentary in which the legal category of "civil rights" was refined. Section IV of the Article, building on the work of Pamela Brandwein and others, describes the manner in which the category took shape. The category had two dimensions, one connected to its content and the other to its implications for the American system of federalism. Distinctions such as those between "secured" and "created" rights, and between "civil" and "social" rights, were designed to place types of conduct within or outside the category. They also were designed to signal which sorts of rights could be enforced against the states by the federal government and which sorts remained in the province of the states.

With those distinctions and their federalism implications in place, the Article reconsiders the leading Court decisions in the conventional narrative of Reconstruction, the Slaughter-House Cases and the Civil Rights Cases. That reconsideration engenders a narrative of the constitutional history of the Reconstruction era that differs from the one currently in place.

The narrative has three central features. First, in what has become the conventional historiographical narrative of the constitutional history of Reconstruction, the Reconstruction Congresses have been described as treating the Union's eradication of slavery and opening up of "free" western territory as mandates for a new egalitarian and libertarian vision of postbellum American society. Meanwhile, the Supreme Court, under the tenure of Chief Justice Morrison Waite, has been characterized as reluctant to embrace that vision. The Waite Court's agenda, according to the narrative, was fostering reunion between the North and South at the expense of newly freed African Americans, and the Court's posture has been seen as fatal to the promise of Reconstruction. (8)

Building on recent scholarship that identified problems with the conventional narrative, this Article concludes that the narrative is anachronistic and in need of refinement. The Court's interpretations of Reconstruction-era civil rights enactments were not incompatible with the protection of the rights of African Americans in certain contexts. But they rested on doctrinal distinctions that have become obscured with time. (9)

After the passage of the Civil Rights Act of 1866, (10) judicial decisions in the 1870s and 1880s distinguished between two different classes of rights, so-called "secured" or "natural" rights and so-called "created" or "conferred" rights. (11) The former class included rights that in antebellum jurisprudence were thought to be among the "privileges and immunities" of state citizens. Those rights were creatures of state law, meaning they could be restricted by states and were reserved only for citizens, which did not include all residents of states. The latter class consisted of rights that had been granted to citizens by provisions of the Constitution. (12) Brandwein's analysis of Supreme Court and lower federal court decisions in voting rights cases has shown that the most conspicuous example of that class was the right afforded to black as well as white people, who were citizens of both the states and the United States after the passage of the Fourteenth Amendment, not to have their opportunities to vote restricted on the basis of race.

The federalism implications of those two classes of civil rights were different. With respect to the first class, the federal government could not intervene to protect "secured" rights under its Fourteenth Amendment enforcement powers unless a state had intentionally or negligently failed to safeguard them. This meant that in many cases individual infringements of civil rights in the states remained...