Post-Civil War period during which the Republican-controlled Union government took control of former Confederate state governments and tried to force the southern states to grant African Americans equal rights.
After the Civil War ended in early 1865 the U.S. government faced fundamental constitutional questions. That the Union was indestructible and states had no right to secede had been settled on the battlefield. However, the relation of the former Confederate states to the Union was unsettled, and the meaning of freedom for the former slaves remained to be worked out. Wresting control of Reconstruction from President Andrew Johnson, who was overanxious for reconciliation with the unrepentant white South, the Republican-controlled Congress passed a series of measures designed to secure a broad nationalization of civil rights and establish a rule of law strong enough to protect black Americans for the long haul.
While there is no debate about when Reconstruction ended with the 1877 inauguration of President Rutherford B. Hayes many dates have been assigned to its beginnings.
This 1866 editorial cartoon critically examines President Andrew Johnson's Reconstruction policies, which raised a number of issues that were considered by the Supreme Court.
Many members of Congress initially believed that the Thirteenth Amendment
When the southern states enacted discriminatory laws the notorious black codes designed to keep African Americans in a slavelike condition, Congress imposed further restrictions on the recalcitrant South. In early 1866 Congress passed a Civil Rights Act
Meanwhile, in 1867, Congress passed a series of laws called the Reconstruction Acts. These laws abolished the South’s newly formed state governments and placed every former Confederate state, except Tennessee, a military district governed by federal troops, under martial law. States wishing to qualify for readmission to the Union were required to write new constitutions that would allow for black suffrage. They also had to ratify the Thirteenth and Fourteenth Amendments and democratically elect new state governments. Black voters participated in every step of this process. By 1870 all southern states were readmitted to the Union under reconstituted state governments. However, white southerners never recognized the legality of their integrated state governments.
Nightriders of the Ku Klux Klan terrorized black voters despite the ratification of the Fifteenth Amendment (1870). Congress responded in 1870, and again in 1871, with enforcement acts designed to stop Klan violence and enforce the Fourteenth and Fifteenth Amendments against private acts of violence, as well as illegal state actions. Responsibility for interpreting these new amendments and the laws that supported them eventually fell on the U.S. Supreme Court
The fact that the three Civil War amendments made some changes in the federal system seemed clear. However, the exact nature of those changes was less clear. For example, the question of precisely which privileges and immunities national citizenship conveyed remained. It was not clear whether the Fourteenth Amendment “nationalized” the Bill of Rights, making its provisions apply to the states as well as to the federal government.
It was also unclear whether the national government was empowered to protect black citizens against private interference with their rights. Other questions included the matter of whether the Fourteenth Amendment’s state action provision limited federal intervention to cases in which there was statutory discrimination. Was segregation a remnant of slavery outlawed by the Thirteenth Amendment? Did the Fifteenth Amendment provide a positive right to vote? These constitutional issues found their way into the lower federal courts and made their way to the Supreme Court at a time when most northerners had tired of southern questions. The Court’s conservative, formalistic answers to these questions effectively eroded the constitutional rights of African Americans living in the South. By the end of the nineteenth century their future was firmly under control of white southerners.
The Supreme Court first articulated its interpretation of the Fourteenth Amendment in the so-called Slaughterhouse Cases
Slaughterhouse presented an opportunity for the Court to recognize that the Fourteenth Amendment had radically altered the federal system, making the U.S. government responsible for protecting the rights of all citizens. However, it was not to be. Justice Samuel F. Miller, speaking for a closely split majority, chose a rigidly narrow interpretation that adhered to a traditional understanding of dual federalism
The Court’s ruling in United States v. Cruikshank
United States v. Reese
The Civil Rights Cases
Justice John Marshall Harlan, a Kentuckian, former slave owner, and opponent of the Fourteenth Amendment, was the only voice of dissent in the Civil Rights Cases. Harlan found ample authority for the Civil Rights Act in both the Thirteenth and Fourteenth Amendments. Segregation was a burden of slavery in Harlan’s mind, therefore the Thirteenth Amendment’s enabling clause gave Congress authority to legislate against it. Moreover, Harlan read the Fourteenth Amendment broadly, finding authority there for the national government to protect the former slaves in all their rights.
The Reconstruction-era Court clearly did not champion African American rights, but it did occasionally decide cases in their favor. In Ex parte Yarbrough
In a series of jury cases,
The Reconstruction-era court was even more conservative in addressing women’s rights issues than it was African American issues. Women who hoped to use the Fourteenth Amendment to overturn discriminatory state legislation were disappointed. In Bradwell v. Illinois
Joseph Bradley, concurring in Bradwell, appears to have summed up the attitude of the Court in his later infamous observation that a woman’s “destiny and mission” is to be a wife and mother. While African Americans had made some progress under the Fourteenth Amendment, the status of women remained unchanged.
Even though the Reconstruction-era Court was not generous to African Americans, its rulings were grounded more in conservative adherence to traditional notions of dual federalism than in overt racism. While the Court insisted on a state-action theory of the Fourteenth Amendment, it moved to protect African American rights in cases of overt state action. Not until two decades after Reconstruction ended did the Court establish a judicial doctrine that explicitly sanctioned racial segregation.
Under Chief Justice Melville W. Fuller, the Court’s overtly racist Plessy v. Ferguson decision of 1896 upheld a Louisiana statute that outlawed racial mixing on railroad cars. Winking at the differences between black and white cars, Henry Brown for the Court established the notorious separate but equal doctrine, which the Court did not overturn until 1954. Again, as in the Civil Rights Cases, Harlan was the Court’s only voice of dissent. Harlan decried the “thin disguise of ’equal’ accommodations” and prophesied accurately that Plessy would eventually prove as damaging to the nation as the Court’s 1857 Scott v. Sandford decision.
The Supreme Court failed during Reconstruction to establish the constitutional rights of African Americans. The justices’ conservatism, racism, and formalistic readings of the law worked against extending federal protections to African Americans. However, it should be kept in mind that the justices reflected the racial and legal values of their time. The Court would not fully support African American rights until the Warren Court instituted what has been called the “second Reconstruction” era during the 1950’s and 1960’s.
Literature on Reconstruction is voluminous. Beginners might well begin with overviews of the Reconstruction-era courts. Jonathan Lurie’s The Chase Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2004) and Donald Grier Stephenson, Jr.’s The Waite Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003) are comprehensive reference books covering the Supreme Court through the years of Reconstruction. John R. Howard’s The Shifting Wind: The Supreme Court and Civil Rights from Reconstruction to Brown (Albany: State University of New York Press, 1999) is up to date, accessible, and engagingly written. Howard is particularly enlightening on the racial attitudes of individual justices and their impact on Court dynamics, though he may overstate the real impact of Court decisions on life in the South. Donald G. Nieman’s Promises to Keep: African-Americans and the Constitutional Order, 1776 to the Present (New York: Oxford University Press, 1991) is more balanced. For an excellent liberal overview see William M. Wiecek’s Liberty Under Law: The Supreme Court in American Life (Baltimore, Md.: Johns Hopkins University Press, 1988). For a more conservative view of the Court and federal policy, see Michael Les Benedict’s “Preserving Federalism: Reconstruction and the Waite Court,” Supreme Court Review (Chicago: University of Chicago Press, 1978). More detailed information is provided in Harold M. Hyman and William M. Wiecek’s Equal Justice Under Law: Constitutional Development, 1835-1875 (New York: Harper, 1982); Loren Miller’s The Petitioners: The Story of the Supreme Court of the United States and the Negro (New York: Pantheon Books, 1966); and Herman Belz’s Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York: W. W. Norton, 1978). The most detailed and authoritative information available can be found in Charles Fairman’s Reconstruction and Reunion, 1864-88, 2 vols. (New York: Macmillan, 1987). A detailed analysis of the difficulties of implementing the Fourteenth and Fifteenth Amendments at the state level is Lou Falkner Williams’s The Great South Carolina Ku Klux Klan Trials, 1871-1872 (Athens: University of Georgia Press, 1996). Frank J. Scaturro’s The Supreme Court’s Retreat from Reconstruction: A Distortion of Constitutional Jurisprudence (Westport, Conn.: Greenwood Press, 2000) looks at the continuing legacy of Reconstruction.
Bradley, Joseph P.
Harlan, John Marshall
Miller, Samuel F.
Representation, fairness of
Separate but equal doctrine
Vote, right to
Waite, Morrison R.