A Judicial Abandonment of Blacks? Rethinking the "State Action" Cases of the Waite Court

Law & Society Review, Jun 2007 by Brandwein, Pamela

This article reconsiders the conventional wisdom that the Supreme Court definitively abandoned the freedmen to their former masters through the "state action" decisions of the 1870s and 1880s. Arguing that anachronisms distort our understanding of this critical period, I offer an historical institutional analysis of state action doctrine by recovering the legal categories, assumptions, and distinctions that constituted judicial discourse about the state action rule. Showing that federal power to protect blacks was more intact than scholars realize, I also add a perspective from the sociology of knowledge. By examining a series of modern developments that erased the contexts of the state action decisions, I show how institutional practices gave rise to the anachronisms that this article seeks to correct.

Over the past half-century, the story of the Supreme Court's post-Civil War abandonment of blacks has become standard and routine.1 Blamed for defeating Republican efforts to secure national protection for black rights, the Court has been the target of trenchant criticism. The Court "paralyzed the federal government's attempt to protect black citizens," charges Levy, "in effect, shap[ing] the Constitution to the advantage of the Ku Klux Klan" (2000:733). So narrow were judicial interpretations of the Reconstruction amendments, asserts Bell, that the promised protection for the freedmen was rendered "meaningless in virtually all situations" (1992:58).

A central place in this story of abandonment is occupied by the Civil Rights cases (109 U.S. 3 [1883]), the landmark decision that struck down the public accommodations provisions of the Civil Rights Act of 1875 (18 Stat. 335). Condemned for establishing the doctrine of "state action," the rule that put "merely private" wrongs outside the scope of the Fourteenth Amendment,2 the Civil Rights cases is characterized as the Court's own "bit of reconciliation" between North and South, which sacrificed blacks in order to cement reunion (Woodward 1974:71). The majority opinion of Justice Joseph P. Bradley, indeed, gave fuel to the fire, stating that the freedmen had been the "special favorite of the laws" (Civil Rights cases 1883:24-5). Exclusions from public accommodations were not a badge of slavery, and it would be "running the slavery argument into the ground" to suggest otherwise (1883:24-5). Surely, the Court's invalidation of the public accommodation provisions and Justice Bradley's remarks are evidence of judicial unfriendliness, if not hostility toward basic black rights. Or are they?

This article reconsiders the standard view that the Court definitively abandoned the freedmen through the "state action" decisions of the 187Os and 188Os. The standard view is best understood not as a plain reading of the decisions, but as an anachronistic interpretation generated by twentieth-century institutional developments. Aiming to correct this anachronistic interpretation, I recover the intellectual universe of justices who served during the era named for Chief Justice Morrison R. Waite. More specifically, I recover the legal categories, assumptions, and distinctions that constituted judicial discourse about "state action" during the Waite era (1874-1888). As this historical institutional analysis of state action doctrine reveals, these categories and distinctions are not our own. Indeed, this article renders early state action doctrine unfamiliar and even strange.

The second and third parts lay out two features of this doctrine: a concept I call "state neglect"3 and a legal theory that distinguished between the Fourteenth and Fifteenth Amendments, despite their shared "no state" language. Taking these two features of state action doctrine into account, I show that the Waite Court did not handcuff congressional power to protect blacks to the extent imagined by scholars. Emerging here, then, is a very different picture of the Civil Rights cases.

The fourth part links my reinterpretation of the state action cases to an emerging revisionist literature on political development between 1877 and 1893. While the Compromise of 1877 is generally regarded as a political abandonment of blacks by the Republican party, this revisionism demonstrates that Republican administrations persisted in efforts to enforce voting rights legislation until 1893 (Wang 1997; Goldman 2001; Valelly 2004). This evidence is central here, as it shows that contemporaneous lawyers and litigants did not see a definitive or wholesale legal abandonment in the 187Os and 188Os. While this section is more suggestive than conclusive, my goals are to argue that political as well as legal sequences have been misunderstood and to move toward a new account of constitutional development during this transitional period.

The fifth part brings the article full circle, as it examines a series of twentieth-century developments that erased the intellectual context I recover in the second and third parts. Revealing the standard account of abandonment as an institutional artifact, this last section aims to show how anachronistic thinking about the Waite era was established in the first place. This article's revisionist account of the developmental path of civil rights law, indeed, illuminates the formation of a key feature of the modern American state: an expansive private sphere outside the reach of constitutional limitations. Tracing the institutional developments that gave rise to an anachronistic perspective on the "state action" cases, the fifth part of the article begins to show how a broader view of state responsibility than we have today-a view that was embodied in state neglect concepts-was largely erased.