Rethinking the Judicial Settlement of Reconstruction

Description

American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones. Cover Half-title Series-title Title Copyright Contents Acknowledgments 1 Abandoned Blacks? The New Political History Contextualizing the State Action Decisions The Concept of State Neglect The Fifteenth Amendment Exemption The Stakes A New Periodization of Definitive Abandonment Methodology and the Conceptualization of Supreme Court Decision Making Resources in Constitutional Argumentation The Rise of Distorted Knowledge 2 The Emergence of the Concept of State Neglect, 1867–1873 Fighting the “Ku-Klux” Creating the Vocabulary of State Neglect The Civil Rights Act of 1866 and the Prigg Analogy The Bingham Prototype The Enforcement Acts of 1870–1871 State Neglect in the Federal Circuit Courts The State Neglect Concept and the slaughter-house cases 3 The Civil/Social Distinction: An Intramural Republican Dispute Charles Sumner’s Supplementary Civil Rights Bill The Civil/Political/Social Typology of Rights Republican Opposition to Sumner’s Bill Republican Support for Sumner’s Bill 4 The Birth of State Action Doctrine, 1874–1876 Joseph Bradley: A Brief Biographical Detour The Circuit Opinion in cruikshank The Question The Hybrid Constitution The Emergence of State Action Doctrine The Fifteenth Amendment Exemption Racializing the Thirteenth Amendment Throwing Out the Indictment Three Contemporaneous Jury Charges: Continuous Interpretations Arguing Before the Supreme Court The Briefs for Cruikshank The Government Brief The Opinion for the Court Political Instability in the Run-up to the 1876 Election Chief Justice Waite’s Shorthand The Companion Case: United States v. Reese Immediate Reception 5 A Surviving Sectional Context, 1876–1891 Attorney General Taft’s Circular The New Political History, 1876–1891 Electoral Federalism: butler (1877), siebold (1880), and yarbrough (1884) The Federal Pursuit of Voting Rights Cases United States v. Harris (1883) 6 The Civil Rights Cases and the Language of State Neglect The “Color of Law…or Custom” Reception: The Civil/Social Distinction, Redux Special Legislation? Would a State Neglect Predicate Have Saved the Statute? Logan v. United States (1892): The Hybrid Constitution, Redux The Last Gasp of Reconstruction 7 Definitive Judicial Abandonment, 1896–1906 Definitive Political Abandonment Definitive Judicial Abandonment, 1896–1906 Residual Expressions of Waite-Era Concepts Justice Woods and United States v. Harris, Redux 8 Twentieth-Century Receptions The Case Method of Legal Study The Dyer Anti-Lynching Bill of 1921: A Transitional Episode The Decline and Collapse of lochner-era Jurisprudence Storylines in the Academy The Struggle to Prosecute Lynching and Police Brutality 9 Conclusion Bibliography Cases Cited Statutes Cited References Index