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The Revolution That Never Was

George P. Fletcher

in Our Secret Constitution: How Lincoln Redefined American Democracy

This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in ... More

This chapter addresses the problems arising from the clash of old and new ideologies during Reconstruction. Questions of federalism and states’ rights, and of equal protection and citizenship in light of abolition – illustrated in the landmark Slaughterhouse Case, and the Civil Rights Cases of 1883 – were ultimately referred to the Supreme Court. The author asserts that the Court's interpretation of the Thirteenth, Fourteenth, and Fifteenth Amendments in these cases served to undermine the cause of the new “secret” constitution.Less

Emancipating Peons, Excluding Coolies: Reconstructing Coercion in the American West

Stacey L. Smith

in The World the Civil War Made

This chapter examines some of the questions raised by the abolition of slavery about the boundaries of coercion. Focusing on the American West, it considers visions of the limits and proper exercise ... More

This chapter examines some of the questions raised by the abolition of slavery about the boundaries of coercion. Focusing on the American West, it considers visions of the limits and proper exercise of coercive power in the realm of labor relations after the Civil War. It looks at the Slaughterhouse Cases, in which the Supreme Court emphasized the problem of defining the legitimate bounds of labor coercion in its invocation of Mexican “peonage” and Chinese “coolieism.” It shows that federal rulings about the illegality of peonage in New Mexico fell short not because of ideological contradiction or political betrayal, but because the United States was simply not powerful or present enough to assert itself over a vast, distant, and newly conquered territory. It argues that changing visions of coercion were just as central to the unfolding of the post-Civil War era as changing visions of freedom.Less

1873: Slaughterhouse Revisited

in A Community Built on Words: The Constitution in History and Politics

Perhaps no decision of the Supreme Court that is not perceived as morally evil in its result has been the subject of so much criticism as the Slaughterhouse Cases. The Court's holding—that the state ... More

Perhaps no decision of the Supreme Court that is not perceived as morally evil in its result has been the subject of so much criticism as the Slaughterhouse Cases. The Court's holding—that the state of Louisiana did not violate the Constitution of the United States by granting the Crescent City Live-Stock Landing and Slaughter-House Company a monopoly over the operation of slaughterhouses within the city and environs of New Orleans—is seldom the object of great interest. What excites widespread censure are the constitutional misdeeds the Court allegedly committed in coming to its judgment. The central items of the usual bill of particulars are the assertion that the Court eviscerated the privileges or immunities clause of section 1 of the fourteenth amendment by giving it so narrow a construction that it has since been of virtually no practical importance, and that the Court manifested a fundamental hostility toward the Civil War amendments that led eventually to the judicial dismantling of Reconstruction and Plessy v. Ferguson's tragic approval of Jim Crow segregation, judicial misdeeds that indefinitely delayed implementation of the nation's promise of freedom and equality to African Americans.Less

Structuralism

Sotirios A. Barber and James E. Fleming

in Constitutional Interpretation: The Basic Questions

Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution's overall arrangement of offices, powers, and ... More

Structuralists contend that interpreters can avoid moral judgments in hard cases by reflecting on the structures of government, i.e., the Constitution's overall arrangement of offices, powers, and relationships. The Constitution's leading structural principles include federalism, separation of powers, and democracy. This chapter shows that Americans have always disagreed on structural questions and their implications for the constitutional rights of individuals. Interpreters cannot avoid philosophic responsibilities through noncontroversial inferences from the Constitution's structures. A responsible approach to structural questions demands a fusion of historical, philosophic, and scientific inquiry. It cannot avoid philosophic reflection and choices.Less

The Tragic Legality of Racial Violence: Reconstruction, Race, and Emergency

Daniel Kato

in Liberalizing Lynching: Building a New Racialized State

The federal government framed the capacity for rights enforcement by instituting an emergency. Emergencies tend to be associated with restricting rights, but there have been instances when ... More

The federal government framed the capacity for rights enforcement by instituting an emergency. Emergencies tend to be associated with restricting rights, but there have been instances when emergencies have led to the expansion of rights. During Reconstruction, racial terror was suspended temporarily and the radical practice of extending rights previously reserved for whites was invoked. The Supreme Court’s handling of racial violence during Reconstruction is examined to illuminate how the judiciary framed the unprecedented task of extending rights to blacks. Contrary to the standard account that depicts the Supreme Court as adamantly against federal rights enforcement for blacks, a close textual reading of the Reconstruction cases, starting with Justice Miller’s decision in The Slaughterhouse Cases, indicates that the Court was amenable to federal rights enforcement for blacks.Less

Synthesis

Lackland H. Bloom

in Methods of Interpretation: How the Supreme Court Reads the Constitution

This chapter illustrates how the Court synthesizes different methods of interpretation into a coherent opinion, and how concurring and dissenting justices often use the same methods of interpretation ... More

This chapter illustrates how the Court synthesizes different methods of interpretation into a coherent opinion, and how concurring and dissenting justices often use the same methods of interpretation as the majority to draw very different conclusions. To achieve this, the book examines five landmark cases each from a different historical era and each dealing with a different area of constitutional law. The cases are Cohens v Virginia, the Slaughterhouse Cases, Powell v Alabama, New York Times v Sullivan, and Lee v Weisman.Less

To the Slaughterhouse

Jefferson Decker

in The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government

Ronald Reagan’s second term in office began with big ambitions but was plagued by scandal and mismanagement. Veterans of conservative legal groups working for the administration experienced these ... More

Ronald Reagan’s second term in office began with big ambitions but was plagued by scandal and mismanagement. Veterans of conservative legal groups working for the administration experienced these disappointments firsthand and learned from them. This chapter describes the efforts of Justice Department environmental lawyers Thomas Hookano and Roger Marzulla to persuade their administration to take a hard stand against “temporary takings”—that is, the notion that the government owes property owners money even if it later rescinds the offending regulation. And it describes how Clint Bolick, a lawyer for the justice department’s civil rights division, decided that conservatives should embrace the expansive view of the Fourteenth Amendment associated with legal liberals—and use it to promote economic freedom. Bolick’s ideas helped to set the agenda of conservative legal groups from the 1990s to the present.Less

The Court Redeemed

J. Harvie Wilkinson

in From Brown to Bakke: The Supreme Court and School Integration: 1945-1978

Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage. But Brown acted to emancipate the white South and the Supreme Court as ... More

Everyone understands that Brown v. Board of Education helped deliver the Negro from over three centuries of legal bondage. But Brown acted to emancipate the white South and the Supreme Court as well. Not that the South immediately recognized Brown as a deliverance from economic stagnation, moral debility, and sectional isolation, a deliverance that would end with the installment of one of its own in the White House by 1977. And the Court only barely acknowledged in Brown the full weight of history from which it was itself redeemed. Indeed, the true story of the Court’s own past attitude toward the black man remains one of the deafening silences of the Brown opinion. For half a century after the Civil War, the Supreme Court had, in effect, told the Negro to seek solace not in the law of the land but, like Stephen Foster’s Old Black Joe, in cotton fields, mournful song, darkey friends, and the hereafter. It was President Lincoln who issued the Emancipation Proclamation and Congress that moved to secure Negro rights in the South with no fewer than three Constitutional amendments and four Civil Rights acts shortly after the Civil War. Throughout this period, the Court was eyed distrustfully. The Radical Republicans were “aware of the power the Court could exercise. They were for the most part bitterly aware of it, having long fought such decisions as the Dred Scott case.” Radicals such as Congressman Thaddeus Stevens of Pennsylvania probably “had little hope that the Court would play a role in furthering their long range objectives.” What hopes they did have centered on those sections of the post-Civil War amendments permitting Congress to act through “appropriate legislation.” In 1865 the Radicals sensed a long-awaited opportunity. Many a proud southern planter was left to his ashes and rubble, to scorched earth and wistful dreams. “The Old South,” wrote one observer in 1870, “has gone ‘down among the dead men’. . . . For that vanished form of society there can be no resurrection. . . .” Less