TITLE

THE ORIGINS OF CIVIL RIGHTS IN AMERICA

AUTHOR(S)
White, G. Edward
PUB. DATE
June 2014
SOURCE
Case Western Reserve Law Review;Summer2014, Vol. 64 Issue 4, p755
SOURCE TYPE
Academic Journal
DOC. TYPE
Article
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 Cases2 and invalidation of the public accommodations provisions of the Civil Rights Act of 18753 in the Civil Rights Cases 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.
ACCESSION #
100183276

 

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