Excerpted From: Sean Beienburg and Benjamin B. Johnson, Black Popular Constitutionalism and Federalism after the Civil Rights Cases, 65 Arizona Law Review 579 (Fall, 2023) (258 Footnotes) (Full Document)


BeienburgJohnsonIn the 2022 term, the Supreme Court decided two cases that directly implicated the civil and voting rights of people of color. In Merrill v. Milligan, the Court upheld an injunction blocking an Alabama redistricting map. In Students for Fair Admissions, Inc. v. University of North Carolina, the Court struck down universities' ability to directly factor race into admissions. The first of these cases implicated the Voting Rights Act; the latter implicated the Civil Rights Act. Both landmark pieces of legislation emerged from the Civil Rights Era of the mid-twentieth century, but the interplay of voting, civil rights, and the Supreme Court extends back much further. This Article looks back 140 years to a different era when the voting and civil rights of newly freed Black Americans were first contested at the Court. The civil rights question of the day was not admission to universities but access to public accommodation.

Congress passed the Civil Rights Act of 1875 (the “Act”), giving Black Americans guaranteed access to public accommodations like inns, public conveyances, and theaters; however, the Supreme Court struck down much of the Act in the Civil Rights Cases (“CRC [Civil Rights Cases]”) as beyond the scope of Congress's power. The Court, over a powerful dissent by Justice Harlan, held that there was no evidence of “state action” that would trigger federal power under the Fourteenth Amendment. The decision was hailed and derided, and given the scope of the issues involved, it is unsurprising that the commentary, both contemporaneously and in later academic treatments, interpreted the opinion quite differently.

The two most common criticisms of the Waite Court have always been that it was overly protective of federalism concerns and that it treated public accommodation as a social right instead of a civil right. The justices, the latter critique runs, may have wanted to protect civic equality (e.g., equal ability to make contracts), but they did not want to promote social equality among the races. So while the Republican Congress might have thought that access to public accommodations was a civil right, the justices disagreed.

Either way, it is widely believed that the CRC [Civil Rights Cases] put a stake in Reconstruction attempts to protect public accommodations and civil rights more broadly. Republican dominance of Congress had fallen, and public support for Reconstruction had long since faded. Thus, the CRC [Civil Rights Cases] and the soon-to-follow Plessy v. Ferguson decision demarcated the end of Reconstruction. It would take more than 90 years for Congress to make another meaningful attempt at protecting the civil rights of Black Americans through the Civil Rights Act of 1964. The Warren Court would uphold that legislation not under the Fourteenth Amendment but as a proper exercise of Congress's Commerce Clause power.

As this Article shows, this history is incomplete. Justice Bradley's majority opinion reflected the consensus of his time, the same understanding that birthed the Reconstruction Amendments. That consensus, widely shared by centrist and even some radical Republicans, Northern Democrats, and Southern Bourbons, retained constitutional commitments to federalism, including strict limits on federal powers, with two primary exceptions: the Thirteenth Amendment and, to a lesser extent, the Fifteenth Amendment. The Fourteenth Amendment's guarantee of equal protection of civil rights, however, was only available as a remedial power when states violated or failed to protect individuals. That is, the Thirteenth and Fifteenth amendments allowed Congress to act proactively to eliminate slavery and to guarantee political rights, but Congress could only be reactive under the Fourteenth Amendment. This is why the Court upheld federal statutes that protected political rights or were passed pursuant to the Thirteenth Amendment, even as it blocked the Civil Rights Act of 1875. The idea behind this careful balance was that if the federal government could secure Black Americans' political rights, they would be able to use their voting power to protect their own civil rights at the state level. It thus followed that protection of civil rights could be left to the states with the promise of a federal backstop.

By drawing on these insights and assembling the most thorough recreation of the state histories behind passage of these laws, this Article argues for an interpretation of the constitutional politics of the Civil Rights Cases that also incorporates the work of Black activists to secure passage of state public accommodations laws that transformed America's vision of civil rights. Looking back over the horrors of Jim Crow, it is difficult to remember that at the time of the CRC [Civil Rights Cases], the major features of Jim Crow--widespread mandatory legal segregation and racial disenfranchisement--were years away, and Black voters were still an electoral force in the South. It is even harder to imagine how Republican elites at the time could have been somewhat optimistic about the possibility of racial equality (at least in the political and civic spheres), even in the South. Yet they were.

This Article situates the CRC [Civil Rights Cases] in its historical and political context. It provides a more fulsome account of the politics that gave rise to and followed the CRC [Civil Rights Cases]. Republicans were generally committed to securing access to public accommodations and to protecting civil rights more broadly. But their preferred method was to achieve this by protecting Black political power. Thus, while the Fourteenth Amendment provided a federal backstop for civil rights, freedmen would have the ability to look out for themselves. This vision represented a careful balance between bipartisan elite commitments to both federalism and civil rights. Achieving this vision would require two steps.

First, civil rights activists and sympathetic legislators needed to exercise political power at the state level to ensure states recognized access to public accommodations as a civil right to be protected. This served several purposes. It would establish a national legal consensus that such access was a civil right rather than a social right, thus ensuring that if Congress were to enact a successor to the 1875 Act, there would be no doubt that such rights were civil rights. It would also help establish a record that Congress could build on if necessary. That is, if states refused to pass legislation guaranteeing these rights or if they failed to enforce such legislation or common law guarantees, it would provide the record necessary to support future federal legislation. Finally, putting in the work to build support at the state level for public accommodation access would demonstrate that civil rights advocates were living up to their end of the implicit bargain: they would use what political power they could muster to defend civil rights in the states.

This was the project of a Black popular constitutionalism movement that arose in the wake of the CRC [Civil Rights Cases]. The movement was astonishingly successful. A major, novel contribution of this Article is to tell the story of this exercise in popular constitutionalism. When it began, there was no clear consensus that access to public accommodations was a civil right. Many argued instead that it was a lesser “social” right. Before this constitutionalist movement was over, however, nearly every Northern state (and many in the South) recognized public accommodation access as a legally enforceable civil right. To achieve this, Black activists showed themselves to be savvy political operators. By engaging in electoral politics, Northern Democrats and Republicans in electorally contestable states had strong incentives to engage in position-taking on behalf of those pivotal popular constitutionalist voters. In short, the Black popular constitutionalism movement held up its end of the deal.

Second, as Black voters pursued civil rights legislation at the state level, the federal government's half of the deal was its obligation to protect the voting power of freedmen in the South. In addition, the federal government was to serve as a backstop for Black Americans' civil rights if states violated or failed to protect them. The role of the Court, then, was to help to implement this deal. It would vindicate federal efforts to protect political rights while limiting federal overreach in the civil rights domain, leaving Black Americans and civil rights activists to pursue those ends through the political process at the state level.

In sum, this Article shows that the CRC [Civil Rights Cases] was the Court's attempt to fulfill its role in a complicated constitutional scheme and to maintain the fragile balance that Republicans hoped would protect both constitutional values and Black Americans. In other words, the CRC [Civil Rights Cases] vindicated a shared commitment to limit the growth of national power alongside an implicit promise of positive protective action affirming Black dignity on the part of the states. Ultimately, Northern apathy in Congress and Southern hostility everywhere undermined these federal commitments. But that failure was still years in the future, and the Court did not see it coming.

This Article centers the role of Black activists at the state level who deployed their political power to institute a change in constitutional doctrine. They successfully enshrined access to public accommodations as a civil right in state legislation across the country. This widespread diffusion of public accommodations laws created a hybrid constitutionalism that linked the Black movement's rights vision with a bipartisan and mainstream commitment to federalism. Previous research has shown that the presence of policy entrepreneurs and pressure from local interest groups are among the key predictors of policy diffusion among the states; Black policy entrepreneurs and lobbying groups fulfilled that role by working to pass public accommodations laws in the state capitols. By passing and defending state-level civil rights legislation enforcing Black rights, state legislators modeled a constitutional settlement that subsequent reformers could use in attempting to bridge progressive political ends and conservative constitutionalism through state police powers.

In the rest of this Article, we show how civil rights activists generally and Black Americans specifically lived up to their end of the implicit political compact embodied in the CRC [Civil Rights Cases]. Unfortunately, the federal government failed to hold up its part. This story has three distinct implications. First, it demonstrates the need for a revised understanding of the CRC [Civil Rights Cases] and the Court's role in the demise of Reconstruction. It was the loss of federal will, rather than the Court's decisions in cases like the CRC [Civil Rights Cases], that ultimately doomed efforts to create and maintain political and civil equality in the South. Second, the revised understanding of the CRC [Civil Rights Cases] makes it possible to consider an alternative history different from the one Bruce Ackerman proposed in his Holmes Lectures. Specifically, the Warren Court could have upheld the Civil Rights Act of 1964 under the Fourteenth Amendment because decades of Jim Crow provided ample evidence of state neglect of civil rights. Finally, the revised account of the CRC [Civil Rights Cases] and renewed attention to the original understanding of the Reconstruction Amendments should inform the Roberts Court as it considers cases dealing with voting and civil rights. This history is a timely reminder that, as a matter of original public meaning, the Fourteenth and Fifteenth amendments operate quite differently. The former was understood to have a state action requirement that might be triggered by clear state neglect. The latter, by contrast, was seen as creating significant congressional power to protect against racial disenfranchisement so that the people could protect their own rights in the states: power that Congress could exercise with significantly lessened federalism concerns. Finally, this Article adds to a lively and current scholarly interest in the use of federalism and states' rights to achieve progressive ends and the limits of federal power to secure those aims.

The Article is organized as follows. Part I reviews the political balance that emerged in the wake of the Civil War. Republican elites had competing commitments to upholding traditional constitutional notions of federalism and to protecting the rights of freedmen. To achieve both commitments, the Reconstruction Amendments gave Congress power to guarantee political rights while leaving the protection of civil rights to the political process with the promise of a federal backstop. Part II tells the sadly forgotten story of the largely successful exercise in popular constitutionalism achieved by Black activists following the CRC [Civil Rights Cases]. Part III reconsiders the legacy of the CRC [Civil Rights Cases] and offers some preliminary thoughts on what a better understanding of the relevant history may mean for the future of voting and civil rights.

[. . .]

The Supreme Court's decision in the CRC [Civil Rights Cases] exposed a tension among Republicans and some Northern Democrats between two of their professed commitments: federalism and protecting the hard-won civil rights of Black Americans. For most Black Americans and their radical Republican allies who were less invested in federalism, the opinion was catastrophic. In addition to limiting federal power to achieve integration, the ruling made it possible to dismiss access to public accommodations as a social preference rather than a legally enforceable right. But the Court and political elites around the nation recognized the decision as a part of an intentional compromise to preserve these dual commitments. By guaranteeing freedman political power through voting, the hope was that federal intervention would be unnecessary.

This careful balance relied on Black political power at the state level. In the wake of the CRC [Civil Rights Cases], a Black popular constitutionalism movement skillfully cornered Democrats into joining a bipartisan commitment to public accommodation access as a protected civil right. Constrained by the need to demonstrate that they had made their peace with the Civil War, Democrats from both the North and the South initially endorsed Republicans' constitutional settlement, yielded to the Black political movement, and promised that the CRC [Civil Rights Cases] would give their party a chance to show that states' rights and the protection of Black rights were not in tension but could instead be harmonized.

While this reliance on state legislation for Black civil rights guarantees was dependent on aggressive intervention in one political domain-- suffrage--it allowed and was perfectly consistent with constitutional conservatism elsewhere. If the federal government could ensure the fairness of the political process within the states (as well as the enforcement of the basic floor of the Bill of Rights and of civil rights), then the Republicans could otherwise maintain the traditional boundaries between state and federal power and preserve a state-oriented polity while also building a state-based but federally guaranteed civil rights regime.

That the decision allowed for the possibility that public accommodations access could be a civil right made this effort to vindicate the right through the states especially appealing; the Supreme Court's decision ostensibly reserved the power to approve similar national legislation should states fail to meet their civil rights responsibilities. Such a minimal supervisory role may or may not have been the most accurate reading of the Court's “state neglect” holding, but it offered the possibility of a federal floor of rights without having to build up national institutions. More importantly, it supplied an underlying ideological support for avoiding national enforcement except as a last resort.

The incorporation of state politics thus indicates a vision that was both more protective of rights and more firmly rooted in American constitutional thought and practice than a purely national account would indicate. The proto-originalism of Matthew Carpenter and many other mainstream Republicans led them to believe that the framers of the Fourteenth Amendment had authorized the national government to act only in the case of certain rights. While disagreeing on what types of rights the Amendment included, all but the most radical Republicans agreed that the federal government could not simply make the first move in enforcing civil rights. The states, however, were vested with the presumptive police powers to act for the public good rather than only within the more limited domain of enumerated powers. This meant states could consider the legal merit of the rights themselves. Using that power, states passed their own civil rights acts that both affirmed a more inclusive civic membership and more generally vindicated the Black popular constitutionalist claims about what counted as a legally enforceable civil right.

This story adds complexity to our scholarly understanding of popular constitutionalism. Early treatments of the subject presumed such movements were fundamentally progressive, but more recent critics and later observers have argued that its most consequential moments have instead been conservative. The response to the CRC [Civil Rights Cases] indicates a more mixed perspective. On the one hand, defenders of the state public accommodations laws--including some Black activists, supportive governors, and legislative policymakers--explained state passage as a difference between the plenary powers of the states and the limited powers of the federal government: in effect, rejecting the nationalism of some strands of Black popular constitutionalism. Thus, the response to the decision served as a ratification of the states' rights position shared by Democrats and all but the most radical Republicans. At the same time, however, passage of these laws served as a marked victory for the Black popular constitutionalist conception of rights, rejecting efforts to dismiss equal access to the public sphere as a mere social grace offered at private discretion.

Looking to the actions of states in the wake of the CRC [Civil Rights Cases] forces us to reassess this ruling and its legacy. Even if, as some contemporaries observed, public accommodations laws served mostly symbolic purposes due to weak enforcement implementation, those critics of the decision nonetheless lamented the overturning of the Civil Rights Act as an affront. The states' response, in which nearly the entire North rose up to pass civil rights legislation, suggests at least a partial victory for Black equality. Even if white legislators acted insincerely, that they were forced to act shows that Black citizens were an important voice and an electoral force to be reckoned with. Even the Ohio representative hissing about the “n[ ] vote” still had to yield to their will and defer to their agency. Frederick Douglass and other critics of the decision held it to be a terrible loss, but arbitrarily privileging that moment neglects the hard work of the Black policy entrepreneurs and petitioners who successfully restored the idea of Black membership in almost the entire North. That the victory was incomplete and short-lived cannot be denied, but the culprit was not the Court. In the end, it was not federalism that doomed the compromise, but a lack of federal will.

Sean Beienburg, Assistant Professor, Arizona State University, School of Civic and Economic Thought and Leadership;

Ben Johnson, Associate Professor, University of Florida, Levin College of Law.