Reviewed by Alec Ewald, Department of Political Science, University of Vermont. Email: Alec.Ewald [at] uvm.edu.
In Rethinking the Judicial Settlement of Reconstruction, Pamela Brandwein argues that in fact the Supreme Court did not “settle” Reconstruction at all, and that some of the Court decisions most commonly held up as overtly hostile to black rights were quite the opposite. This is a bold revisionist book, sure to challenge the assumptions of anyone who has written on or taught Reconstruction-era Constitutional history.
Brandwein’s main target is the “state action doctrine” as it developed in the decades immediately following the Civil War – that is, our understanding of that doctrine, which she argues is woefully incomplete. The state-action decisions, particularly the Civil Rights Cases of 1883, are commonly depicted as a judicial consolidation of the political abandonment of African Americans in the south (pp.10, 228). That’s wrong, for two reasons. First, she argues, the definitive abandonment of southern blacks by the Republican Party simply hadn’t happened yet: it took place only after 1891. Second, and central to the book, the “state action” decisions actually “provided the federal government with broad possibilities for rights enforcement” (p.12). Those possibilities rested on two forgotten strands of state-action jurisprudence: what Brandwein calls, respectively, “state neglect” and the “Fifteenth Amendment exception.”
Like decisions before and after it, the Civil Rights Cases held that Congress can reach private individuals, Brandwein argues – but only where “state neglect” is present. Though they never settled on a singular term for it, Republicans in Congress, their allies in the newspapers, and lower-court judges in the 1860s and 1870s had all emphasized this concept and agreed on its presence in early civil-rights statutes (pp.43, 45-46). The federal government can act, as one Republican newspaper said in summing up the Civil Rights Cases, if “State or local officers . . . refuse to extend to black citizens the protection to which they are entitled as citizens” (p.168). State neglect not only could be remedied under common law but in fact qualified as a rights denial, and “as a form of state action within the meaning of the Fourteenth Amendment” (p.29). We have lost sight, Brandwein writes, of “the extent to which the Court viewed the non-enforcement of neutral law as a rights denial and preserved federal power to reach private individuals as a remedy” (p.167). That Congress and the executive branch gradually curtailed their use of such remedies in the following decades cannot rightly be laid at the Court’s feet. Moreover, the 1875 Civil Rights Act was extremely weak by the time the Civil Rights Cases were [*437] decided: the Act had been opposed by many Republicans (both in Congress and in the press, including the New York Times, which heartily welcomed the 1883 ruling), and probably would not have passed at all had Sumner not died at the very moment when radicals were in a position to push it forward as a memorial to their departed leader (pp.67, 172).
Brandwein’s case for the “Fifteenth Amendment exception” to the state-action doctrine is particularly helpful. In a series of cases led by Ex Parte Siebold (1880) and Ex Parte Yarbrough (1884), the Court allowed federal officials a great deal of space to enforce electoral rights – including the ability to punish private action. How should we understand that fact? Part of the answer, as Brandwein rightly notes, is that the Fifteenth Amendment was not alone in supporting federal election-supervision authority. The Court pointed also to the Elections Clause in Article I, §4, working from what Richard Valelly has called a “muscular reading” of the Clause (Valelly 2007, p.131), one empowering Congress and the federal executive branch to reach past state and local government to direct conduct (and redress misconduct) by both state and private actors in federal elections.
But Brandwein focuses on another, more theoretical reason for the distinction between electoral rights and others. Other authors have puzzled over the “linguistic gymnastics” the Court performed to explain why the Fifteenth and Fourteenth Amendments had such different meaning when they were written with the same phrasing (Goldman 2001, p.56). Brandwein has an answer: different types of rights in nineteenth-century law. The “hybrid Constitution” of Reconstruction protected both guaranteed rights (or “natural,” “secured,” “recognized,” “declared” rights) and given rights (or “created,” “granted,” “given,” “conferred” rights). For Justice Bradley and others, the manner by which rights were protected depended on the type of rights involved (p.97). On this view, electoral rights were created by the Constitution in a way that, say, rights of personal safety were not; that meant Congress and the federal executive had greater power to protect the exercise of voting rights than they did other civil rights.
One of the best things about this book is Brandwein’s emphasis on the combination of egalitarian and white-supremacist views in mainstream and even radical Republican thinking. For Justice Bradley, “as for Republicans generally, antislavery existed side by side with a belief in white superiority” (p.91). It was perfectly common to forcefully support legislative action to protect the formal civil equality of African Americans (their right to own property and serve as witnesses in court, for example) while publicly and graphically discussing the inferiority of blacks and approving the efforts of those who avoided any social contact whatsoever with them.
To us, that combination does not make sense, so that when we are not focusing on it directly, it is forgotten (or at least becomes “unavailable,” in the language of cognitive psychology). Then we neglect to employ it when seeking to understand complex political phenomena such as Court decisions. Brandwein says the only way to understand this period in [*438] constitutional development is to remember that many of its protagonists truly were committed to the rule of law – and to white superiority (pp.3, 91). Brandwein twice points to a terrific passage from Quentin Skinner, warning historians of the ever-present danger that an argument from the past may be conceptualized “in such a way that its alien elements dissolve into a misleading familiarity” (pp.11, 224; Skinner 2002, p.76). A large part of why we have misapprehended the state-action cases, she writes, is that the details of those “alien elements” are obscured by our “assumptions about what follows from racism” (p.238), and about “what racism must look like” (pp.61; 45). We assume that basic public-accommodations equality is an essential component of freedom; they didn’t, but that did not mean they were hostile to legally-mandated equality in all its forms.
Bradley, the key figure in this tale, thought this way and judged this way, making him very much like many other centrist Republicans trying to distinguish civil rights from social rights and to locate a workable middle ground between Radical Republicans and Democrats (pp.61, 103). Such conceptions of social equality did contain manifest inconsistencies – as is usually true of the “cognitive structures that justify hierarchy” (p.81). Ultimately, he and others were able to ignore these contradictions, Brandwein writes, “because liberal and progressive forces were too weak to demand a coherent rationalization” (p.81).
If Brandwein’s rehabilitation of the Civil Rights Cases succeeds, her efforts to do the same for U.S. v. Cruikshank (1876) fall short. Cruikshank voided the prosecutions of those responsible for the massacre of scores of black Republicans at the Colfax County, Louisiana, courthouse on Easter Sunday of 1873. Brandwein rightly focuses on Justice Bradley’s role in the case: riding circuit, he was part of the two-man bench deciding the case in New Orleans in 1874, and his opinion at that level, rather than Chief Justice Waite’s ruling for the Supreme Court two years later, guided contemporary understandings.
Pointing alternately to constitutionally-invalid lawmaking and flawed indictments, Bradley’s Cruikshank opinion set free some of Reconstruction’s worst killers. The heart of his decision said that while the 1866 Civil Rights Act had legitimately empowered Congress to punish conspiracies aimed at depriving blacks of basic civil rights, U.S. Attorney James Beckwith had failed to expressly identify a racist motive in the relevant sections of his indictment. While racist intent “may be inferred,” Bradley wrote coolly, “it ought not to have been left to inference; it should have been alleged” (U.S. v. Cruikshank, 25 F. Cas. 707, 715 (1874)).
Not surprisingly, Cruikshank is universally reviled. But Brandwein reads it as half-full or better, arguing that “it was clearly not an evisceration of enforcement power” (p.111). This may have been an bad result, she says, but Bradley was no “judicial villain” (p.244), and his opinion here should be read as supplying the federal government with “a blueprint for bringing future charges” (p.12). True, this indictment and these convictions were thrown out; but Bradley, and later the full Court, upheld both the Civil Rights Act and Congressional protection of [*439]electoral rights, while simply telling prosecutors to make sure to identify racial motives clearly in their indictments.
The most persuasive part of Brandwein’s Cruikshank analysis is her demonstration that several district-court judges around the turn of the century adopted this “rights-friendly” interpretation of Cruikshank, citing the case in upholding prosecutions for race-based interference in black voting – and, most intriguingly, in instructing a grand-jury empaneled to confront lynch mobs (pp.192-194; 197). These rulings show that Cruikshank did indeed hold some redemptive potential. But they do not exonerate Bradley to the extent Brandwein claims. She has set up what seems an unnecessary choice: either we see Cruikshank as “a way of disallowing punishment for a massacre,” and showing “disinterest in federal intervention” (the conventional view) or understand that it was “comprehensible within a doctrinal framework . . . which observers would have understood” (p.120). It was both. As Charles Lane (2008) shows in his detailed study of the Colfax Massacre and Cruikshank, Bradley went out of his way to reach the result that would enable the killers to walk. This was no “ordinary crime:” there could be no more brazen assault on blacks specifically aimed at punishing them for daring to exercise political power, nor a more clear example of “state neglect.” Bradley’s ruling, and the full Court decision that followed, simply elided this horrific violence. And whatever Bradley’s intentions, Louisiana Democrats celebrated when he handed it down. “They felt it would not only put an end to the Grant Parish prosecutions, but stop all federal interference in state elections” (Goldman 2001, p.57.). Louisiana Governor Kellogg wrote bitterly that Bradley’s decision “was regarded as establishing the principle that hereafter no white man could be punished for killing a negro, and as virtually wiping the Ku Klux Laws off the statute books” (Lane, p.216). Of course, those laws stood – but as a South Carolina federal prosecutor explained in 1879, Cruikshank required an airtight showing that fraud, intimidation, and violence were motivated solely by racism, and given the murky boundaries of party, race, and class, the prosecutor wrote, it was sometimes “absolutely impossible to prove that element of the case” (Lane, p.252).
Still, Brandwein does show that Cruikshank’s place in the jurisprudence that legitimized Jim Crow was by no means inevitable: for all its damage, the decision did leave space and ammunition for legislatures and courts to protect black rights. She uncovers a great example: Attorney General Taft’s 1876 circular to federal marshals, interpreting “recent important judgments given by the Supreme Court” and explaining that the Elections Clause legitimated robust action to protect voting rights in federal elections (130). And to a degree that is not sufficiently recognized, federal prosecutions for violence and electoral interference in the south continued through the 1870s and 1880s, and they were routinely upheld both in lower federal courts and in landmark Supreme Court rulings like Siebold and Yarbrough. Neither Cruikshank, the Civil Rights Cases, nor the compromise of 1877 marked the “end of Reconstruction.”
So, how was the conventional wisdom – what Brandwein calls “distorted [*440] knowledge” – constructed? Brandwein’s answer is another of the book’s high points. First, the rise of the “case method” of study in law schools isolated decisions from their political contexts – making it easier to miss the “state neglect” element of the Civil Rights Cases, for example (p.211). Second, the 1891 creation of a new circuit-court system removed Supreme Court Justices from regular circuit-riding duties, which eventually diminished the significance and authority of circuit-court rulings (p.212) – so that both the early circuit-court state-neglect rulings and the later Fifteenth-Amendment exemption cases lost their prominence. Third, the new paradigm of Constitutional rights after the New Deal moved so far from the “hybrid” Constitution of “given and guaranteed” rights that an “erosion of the capacity to read nineteenth-century legal languages” resulted (p.225, n.118) – so that even advocates who could have used these precedents to their advantage were not able to interpret them effectively. New norms of legal education, structural change in federal courts, and shifting rights ideology: an excellent example of how constitutional development can only be understood by looking at factors beyond Supreme Court cases themselves.
Brandwein’s central aim in Rethinking the Judicial Settlement of Reconstruction is to explore how a particular interpretation of a few central cases was constructed, and then to “destabilize that view” (p.122). This is a telling verb, and a characteristic one. Brandwein is more interested in writing a subtle, challenging description of complexity than in offering us a neat way to slice through it; she prefers to “suggest in allusive but never conclusive fashion” (p.206). That approach is evident when the book’s final pages turn to the present day. The doctrines Brandwein describes might empower some advocates now, she writes, offering the example of domestic-violence victims who could try to show that the police provided less protection to them than to victims of other kinds of violence (p.243). But while Brandwein’s objective is “recovery of these historical constructions” (p.167), she takes pains to emphasize that “no originalist assumptions reside here,” and that “the state-neglect concept determines no legal results today” (p.240). That is, Brandwein never claims that nineteenth-century thinking, whether by legislators, executive-branch lawyers, judges or Justices, tells us how any real or hypothetical case today should be decided. Those considering federal remedies for discrimination today would have to face important threshold questions – whether a particular activity constitutes a civil right, and whether governmental action or inaction rises to the level of “state neglect” – and history “cannot answer these questions” (p.167).
The total disenfranchisement of southern blacks after 1891 had many causes, but “[a] ‘closed’ doctrine of state action, one that shut the door on federal efforts to protect black rights, was not among them” (p.183). When we talk about the state-action doctrine, we are talking about a messy thing rather than a bright line. But the cases themselves, and particularly those all-too-quotable lines from the Civil Rights Cases, can seduce us into thinking the Court of the early 1880s drew a sharp boundary around all non-governmental action and declared it completely off-limits for the federal[*441] government. Brandwein shows it wasn’t so.
Goldman, Robert M. 2001. Reconstruction & Black Suffrage: Losing the Vote in Reese & Cruikshank. Lawrence: University Press of Kansas.
Lane, Charles. 2008. The Day Freedom Died: The Colfax Massacre, The Supreme Court, and the Betrayal of Reconstruction. New York: Henry Holt.
Skinner, Quentin. 2002. Visions of Politics, Vol. 1. Cambridge: Cambridge University Press.
Valelly, Richard M. 2007. “Partisan Entrepreneurship and Policy Windows: George Frisbie Hoar and the 1890 Federal Elections Bill,” in Stephen Skowronek and Matthew Glassman, eds., Formative Acts: American Politics in the Making. Philadelphia: University of Pennsylvania Press.
Civil Rights Cases, 109 U.S. 3 (1883)
Ex Parte Siebold, 100 U.S. 371 (1880)
Ex Parte Yarbrough, 110 U.S. 651 (1884)
U.S. v. Cruikshank, 25 F. Cas. 707 (1874)
U.S. v. Cruikshank, 92 U.S. 542 (1876)
Copyright 2012 by the Author, Alec Ewald.