DP 13: Waite Court: State Action & Black Rights

• A Judicial Abandonment of Blacks? Rethinking the "State Action" Cases of the Waite Court by Pamela Brandwein
• Examines the conventional wisdom about the Supreme Court's treatment of freedmen through the lens of the "state action" doctrine.
• Argues that institutional insistence generates anachronisms that distort the historical context.

The Story of the Supreme Court

• In the past half-century, the Supreme Court's story has been post-Civil War rights abandonment.
• The Court is blamed for defeating Republican efforts to secure national protection for Black rights.
• The Court’s actions are viewed as paralyzing the federal government in its attempts to protect Black citizens.
• The Court narrowed Congress's 14th and 15th Amendment power, resulting in limited protection.
• The author expressed gratitude to numerous individuals for their insights and assistance in developing the article.

Rethinking "State Action"

• The Freedmen's cause was rendered meaningless in virtually all situations.
• A central event is the Court's treatment of the Civil Rights Act of 1875.
• Examines the doctrine of "state action" which puts merely private wrongs outside the scope of the Fourteenth Amendment.
• Shows Federal power to protect Black freedom was significantly broader than previously believed.
• Justice Joseph P. Bradley believed freedmen had been the "special favorite of the laws."
• Challenges the idea that state action decisions were a hodge-podge of "running the slavery argument into the ground".
• Considers star treatment through "state action" decisions between 1878 and 1883.
• Focuses on decisions but also on the anachronistic interpretation generated by twentieth-century constitutional developments.
• Aims to resist this anachronistic intuition by recovering the intellectual universe of justices who served during Chief Justice Morrison Waite's era.
• Recovers the legal categories, assumptions, and distinctions that constituted the framework for state action during Waite's era (1874-1888).
• As this historical reconstruction demonstrates, categories are alien to our own.

Doctrine

• Explores a concept called "state neglect" and distinguishes between the Fourteenth and Fifteenth Amendments.
• Shows that the Waite Court did not handcuff congressional power to protect black citizens.
• Examines a series of twentieth-century developments that erased the distinctions recovered in the second and third sections.
• Demonstrates how anachronistic thinking about the Waite era was established in the first place.
• Illuminates the formation of a key restriction on model American state power: private versus public power.
• Examines the instances in which state responsibility had a very real view that was embedded in state laws.
• The concept "state neglect" is used to identify the non-enforcement of state laws protecting Black civil rights as a denial under the Fourteenth Amendment.
• State neglect was a negative form of state assistance.

The Waite Court

• Deals with Fourteenth Amendment cases and offers a framework for conceptualizing state neglect as a form of state action.
• Early state action jurisprudence considered congressional enforcement of both the Fourteenth and Fifteenth amendments.
• Courts emphasized 19th-century distinctions between rights "deriving" from the constitution and rights "created" by the constitution.
• Congress had direct power to punish private individuals who interfered with voting rights, irrespective of state action/neglect.
• Argues the Waite-era cases gave Congress less Fifteenth Amendment power.
• What was at stake constitutionally was less about what the jurists said than about how historians looked.
• There was no assertive racial egalitarianism in Waite Court cases.
• To fully understand the Court's cases, one must recognize what was not on offer during the Waite era.
• State action about abandonment requires a capacity to perceive abandonment of blacks to their former masters.
• Because the convert liberal-conservative spectrum is impaired.

Justice Bradley

• What about Justice Bradley's famous ridicule for public accommodation claims? How is this consistent with transport for state neglect concepts and nationalizing Fifteenth Amendment rules?
• Explains a nineteenth-century "hierarchy of liberties" concept permitted Republican justices to combine disdain for public accommodation claims with a genuine support for black physical security.
• The impacts of this analysis reverberate across political science, history, and law.
• Examines a series of twentieth century developments that erased the distinctions recovered in the second and third sections.
• The standard account of abandonment assumes institutional indifference.
• Reveals how anachronistic thinking about the Waite era was established in the first place.
• Illustrates, indeed, that many people who attended the centennial commemoration of the Civil Rights Cases as synchronous expressions of compromise.

The Waite Court

• Uses Orren and Skowronek's (1999) notions of "multiple orders" to reconceptualize constitutional development.
• Rejects the confent of a synchronized political system; argues that "inferences" among institutions are often inconsistent.
• The turbulence and upheaval of war created conditions of profound Flux
• The Civil Rights Cases illustrate a society not yet aligned.
• Challenges a Dalinian view of Court decision-making: law and arditeres still will align, though not in the way we normally think of it.
• A multiple orders analysis captures both:
• Anti-federal, then private power, for example, rested upon limitations
• The long back-and-forth on rights enforcement during Republican administrations from Hayes to Harrison is deeply different from that of the Court.
• A new center is coming into view.

Fifteenth Amendment

• Examines legal innovations were part of an attempt to judicially settle debates.
• The watershed decade of the 1890s and first decade of the twentieth century saw decisions of the Fuller Court.
• The analysis clarifies implications for federalist jurisprudence of the Rehnquist Court.
• Recovers state neglect concepts and transforms the scope of Congress's power to enforce the Fourteenth Amendment.
• Reveals state neglect, the recovery of state neglect renders the concept.
• The concept was sundereriksda, which means we should historicize for the past world and in today's freedrardim disputes.
• This article is about the loss of context.

State Action Doctrine

• Claims there is a need for greater attention to how modern institutional doctrines and interpretive schemas map onto Waite-era decisions.
• Waite-era cases speak of states and that there is little support as an alternative.
• Historical institutional analysis of State Action Doctrine
• In constitutional studies today, a central question is whether different constitutional regimes "draw their constitutionalia from the same well."

The Waite Court

• Justices of the Waite era, drew their competitionantiali from a well of ideas different from today's.
• In a body of work aimed not at Reconstruction but at "laissez-faire constitutionalism," scholars are dealing with the architecture of nineteenth-century constitutional thought.
• Jacksonican influences are also present in Waite Court jurisprudence.
• Both substantive and methodological parallels existed between states and the author's.
• Laissez Faire economics is not rooted.

The Civil Rights Cases

• The decision struck down the public accommodation provisions in Civil Rights Act 1875.
• Conventional wisdom holds that provisions reached the conduct of private individuals.

Judicial Text

• An obstacle to the conventional interpretation is that the Court explicitly approved statutes deriving from the Civil Rights Act of 1866.
• Justice Bradley treated the act of 1866 as already effectively limited.
• What state acts effectively limited the act? and What did this have to do with discrimatory state laws.
• We must recover the historical meaning of "law... or custom."
• A secondary goal is the interpretation of nineteenth-century law.

Hierarchy

• The failure of state powers to correct private actions, Justice Bradley wrote, "will only render himself amenable to satisfaction or punishment."

Federal Framework

• Courts had to take a closer look at legal concepts. These concepts are very informative and not entirely understood.
• How close would the scrutiny be given in light of new institutional understandings of federalism and protection? The main point: the court will not overstep its bounds.

Constitutional

• To summarize previous sections, one may argue that the current landscape could benefit from fresh judicial assessment. As it remains is only for state and private action.