Sunday, December 15, 2013

Throwing The Civil Rights Cases

Gerard N. Magliocca

Many scholars who have examined the Supreme Court's 1883 decision in The Civil Rights Cases argue that the Government's briefs in the case were terrible. They neglected to raise points that might have swayed the Court and were poorly written overall.  The Court (save for Justice Harlan) found most of the statute unconstitutional, and Congress did not enact a similar civil rights law until 1964.

This leads me to ask the following question. Is it possible that the Government wanted to lose The Civil Rights Cases and thus intentionally wrote lackluster briefs?  Before you fit me for a tin-foil conspiracy hat, consider this. There is a longstanding custom that the Department of Justice should defend the constitutionality of a federal statute.  Every once in a while, though, the DOJ concludes that it cannot do that.  (The most recent example was DOMA.)  I am not clear, however, that in the nineteenth century there was an understanding that the DOJ could make exceptions like this.  What would the DOJ do then?  Maybe it would just write a really weak brief.  Imagine what the Obama Administration brief in support of DOMA would have looked like if they were compelled to write one.  Would it have been really strong?  Probably not.

There is circumstantial evidence to suggest why the Administration of President Chester Arthur may have wanted the Civil Rights Act of 1875 invalidated.  Basically, the political environment was not hospitable for civil rights enforcement by the 1880s.  If the law were upheld, then the Administration would have been obligated to enforce it (and get criticized) or not enforce it (and get criticized).

Anyway, it's an interesting topic for someone to research.  Perhaps there are internal documents among Arthur's papers that shed light on this.  A bad brief could just a bad brief, but it's suspicious.


On the political side, consider the long depression of 1873-1896 and within that time frame the Gilded Age. Also, at the close of this timeframe came Plessy v. Ferguson in 1896. In difficult economic times racial issues surface.

Would Philips have thrown the case even if CAA wanted him to? It was near the tail end of a long illustrious career.

He was a union southerner and served in the Reconstruction state legislature as a Republican -- which suggests at least some courage in his convictions.

Is there an implicit assumption in your post that the outcome might have changed with better briefing? Because I seriously doubt that. Pamela Brandwein makes a pretty strong argument that the result in the Civil Rights Cases followed pretty naturally from the established thinking of that era.

The Obama administration did write briefs in support of the constitutionality of DOMA prior to February 2011, when the President and Attorney General decided that the law was unconstitutional.

What are the arguments that 'might have swayed' the Court?


Both Mark and Joe come up with questions that question the suggestion of this post. It is difficult looking back to 1883 from our post-Brown v. Bd. of Educ. (1854) current perspectives. Consider the attempts of the Civil Rights Act of 1866 prior to the adoption of the 14th and 15th Amendments. The slaves had been "freed" by the 13th Amendment. But with the nation's expansion to the Pacific, it seems the nation was not focused on addressing the issues of the newly freemen lacking education and financial means to improve their lot. Many poor whites in the former Confederacy who had not been slaveholders had economic concerns with the impact of the labor force of the newly freemen especially in the former slave states. Recall that Plessy v. Ferguson did not involve education but segregation in transportation. And recall that with the adoption of the Civil War Amendments segregation continued in the District of Columbia. While minor advances were made after Plessy and before Brown, the post Civil War Amendments Jim Crow continued, empowered in the former slave states by the KKK which received support from such states. Brown in 1954 addressed segregation in primary schools. With the Civil Rights Acts of the 1960s the effect of Brown was expanded beyond education. Resistance followed primarily from the former slave states, resulting in the GOP's shift from the party of Lincoln to Nixon's GOP "Southern Strategy" that continues to this day. It is difficult enough today trying to figure out how racial issues can be fully retired from politics. It is significantly more difficult going back to 1883 to consider how the Court could have been convinced to uphold the Civil Rights Acts before it. So how might Mark and Joe's questions be answered?

By the Bybee [expletives deleted], at the Legal History Blog's recent "book review" feature a link is provided to a review by David Hamilton Golland of Jeffry D. Hockett's "A Storm Over This Court: Politics, and Supreme Court Decision Making in Brown v. Board of Education." I found the review quite interesting, especially the comments on Justice Jackson. The review references segregation in the District of Columbia at the time of the 14th Amendment. While Brown was unanimous, the background of the views of the Justices should be quite interesting.

I wonder if Jack Balkin or Sandy Levinson have read or plan to read this new book on Brown. If so, I would be interested in their views as next year will be the 60th anniversary of Brown. I'm expecting quite a bit of revisionism on Brown in the coming year just as there was substantial historical revisionism on the Centenary of the Civil War that focused on states rights as the cause of the Civil War, putting to the side slavery that was treated as paternalistic. As I have stated on several occasions in comments at this Blog, there are no longer serious direct challenges of Brown, even by originalists, but indirectly Brown serves to drive many conservatives especially as demographic changes are taking place.

Shag's comment reminds me of Souter's Harvard Commencement speech.
In part:

For those whose exclusive norm for constitutional judging is merely fair reading of language applied to facts objectively viewed, Brown must either be flat-out wrong or a very mystifying decision. Those who look to that model are not likely to think that a federal court back in 1896 should have declared legally mandated racial segregation unconstitutional. But if Plessy was not wrong, how is it that Brown came out so differently? The language of the Constitution’s guarantee of equal protection of the laws did not change between 1896 and 1954, and it would be hard to say that the obvious facts on which Plessy was based had changed, either. While Plessy was about railroad cars and Brown was about schools, that distinction was no great difference. Actually, the best clue to the difference between the cases is the dates they were decided, which I think lead to the explanation for their divergent results.

We miss you David. Hope you are enjoying your retirement reading somewhere.


Those of us who were around when Brown v. Bd. of Educ. came down (1954) and its continuing aftermath have been well involved with the decision and the civil rights movement that followed. Yes, there was much expanded communications with technology advances since the 1883 Civil Rights Cases and the 1896 Plessy decisions. What were public reactions to these decisions to compare with public reactions to Brown and its progeny? Today the public has extensive information on cases that reach the Court and its decisions. But going back to the early days of the Marshall Court up to Brown, how involved and how extensive was public opinion on controversial cases and decisions of the Court?

Abolitionist William Lloyd Garrison's "The Liberator" was quite prominent in the public view with its introduction in the 1830s. With the passage of the 13th Amendment Garrison closed down publication as its goal of abolition had been achieved. Were there significant publications thereafter that focused on the issues facing former slaves now freedmen that compared to the impact of "The Liberator" in addressing such issues? The NAACP was not established until the early 20th century. It took a while for the NAACP to become effective with inroads pre-Brown. So perhaps following abolition via the 13th Amendment, there was no strong public view on racial issues that might have impacted the Court on the Civil Rights Cases and Plessy.

As a follow up to my preceding comment, consider the extensive attention at this and other blogs on the Hobby Lobby and companion case appeals to be heard by the Court. The mainstream media is strongly focused on these appeals. When briefs are filed, they will be available via the Internet. Pundits, including constitutional scholars, will widely broadcast the issues well before oral arguments. The partisan divide will pick and choose sides. Then oral arguments will be available by audio, with the media and especially the Internet commenting, speculating on reactions to the questions of Justices during oral argument, continuing down to the Court's decisions on these appeals. And the political play will follow with the impact of the decisions on the timely 2014 elections.

Compare the above with the Civil Rights Cases and Plessy. What was the interest of the general public during the appeal process; were briefs filed with the Court read by that many; what was the reporting on oral arguments; and how did the public receive the Court's decisions?

Is constitutional law a blood sport today as compared back in the days to the Civil Rights Cases and Plessy? In the short time of the 21st century there have been many major and complex constitutional cases decided by the Court, many 5-4. And there are more to come. Does the public "accept" these decisions? Or do these decisions contribute to the current political dysfunction? In the days of the Civil Rights Cases and Plessy was there comparable political dysfunction?

Strangely for a legal blog post, you ignore the key legal difference between the 1875 & 1964 Civil Rights Acts: The 1875 act was supposedly based on Congress' 14th Amendment enforcement powers; the 1964 act is Commerce Clause legislation.

Though the 14th Amendment does guarantee citizenship rights (including, crucially, the power to enter into contracts) regardless of race, it -- like every other right in the Constitution except the 13th Amendment -- is a right against action by government, NOT private citizens. Thus, the 14th Amendment did NOT prohibit private business owners from exercising their common-law right to choose whom they will (and will not) do business with, so it was NOT a valid basis for Congress to regulate them. In that sense, the Civil Rights Cases are still good law.

By 1964, however, the principle that Congress can regulate businesses operating in interstate commerce under the Commerce Clause was settled thanks to New Deal legislation, especially the Fair Labor Standards Act's inclusion of single-location businesses (something once considered 100% intrastate) that serve interstate travelers. Thus, Congress could impose a legal duty on businesses in interstate commerce to provide public accommodations and hire employees without discrimination under its Commerce Clause powers, irrespective of the 14th Amendment. (A few Southern businesses attempted to exclude interstate travelers after the 1964 act to protect segregation, but that proved to be futile.)

Since we now respect the dissent in Plessy, it is interesting that the majority (written in a similar spirit, if dealing with a somewhat different subject) in the Civil Rights Cases is still good law.

Justice Harlan makes a reasonable case that Congress, including some who voted on the 14A, passed appropriate legislation. In part:

part of the function of government to make and maintain highways for the convenience of the public; that no matter who is the agent, or what is the agency, the function performed is that of the State; that, although the owners may be private companies, they may be compelled to permit the public to use these works in the manner in which they can be used

Public accommodations being special creatures of the state, there is enough state action to warrant the Civil Rights Act of 1875. The acceptance of discrimination is also a "badge of slavery" in that respect.

"Though the 14th Amendment does guarantee citizenship rights (including, crucially, the power to enter into contracts) regardless of race, it -- like every other right in the Constitution except the 13th Amendment -- is a right against action by government, NOT private citizens. Thus, the 14th Amendment did NOT prohibit private business owners from exercising their common-law right to choose whom they will (and will not) do business with, so it was NOT a valid basis for Congress to regulate them. In that sense, the Civil Rights Cases are still good law."

You're assuming your conclusion. The "state action" doctrine is precisely what's in contention in the Civil Rights Cases. In particular, as Harlan's dissent notes, state *inaction* is perfectly reachable under the language of the 14th A.

There are other aspects of the Civil Rights Cases which are questionable from today's perspective (e.g., distinctions such as "social rights" v. "civil rights"), but the key response to your comment rests on the action/inaction distinction.

How Mark Field phrases it seems to work too.

I also question the "only 13A" comment. Isn't the freedom of travel also "a right against action by government, [AND] private citizen"?

For instance, U.S. v. Guest:

"the constitutional right of interstate travel is a right secured against interference from any source whatever, whether governmental or private"


Recent comments suggest a reread of Jack Balkin's "The Dangerous Thirteenth Amendment" available at SSRN:

The Civil Rights Act of 1866 enacted after the 13A was deemed flawed, resulting in the 14A and 15A, following which the 1866 Act was substantially reenacted. But there followed the Civil Rights Cases (1883). It has taken a long time for the Court to "appreciate" the powers of Congress under the enforcement clauses of these Amendments, and we have the recent Shelby County (5-4) suggesting current limitations on those powers.

My legal career began in 1954, the year that Brown v. Bd. of Educ. came down. So I have lived through the Warren Court, the Burger Court, the Rehnquist Court and now the Roberts Court. I had my Con/Law course in 1952 and it was mostly about the Commerce Clause. What happened since seems like a revolution in constitutional law.

I bring this up because of a phrase I heard at the recent BU Law School Conference on Political Dysfunction. Ellen Katz was on Panel II: "Is the Constitution responsible for electoral dysfunction?" In her remarks (I have yet to read her paper) she referenced "judicial anxiety." I was not familiar with thise phrase and thought that if Mel Brooks had been in attendance, the phrase might have inspired a movie. I have been aware of the phrase "judicial activism" that had been used by conservatives to malign the Warren Court and even the Burger Court. I have been aware of the phrase "judicial restraint" that the Rehnquist Court began with before segueing into "judicial activism" that has continued with the Roberts Court. But "judicial anxiety " was new to me.

That evening I did some "Googling" on "judicial anxiety" and it seems the phrase has been used with respect to the state of mind of litigants, etc, appearing before a judicial body. In contrast, "judicial activism" and "judicial restraint" focus on the approaches of the justices in deciding cases. Did Prof. Katz use the phrase "judicial anxiety" in the context of the justices? It wasn't clear to me from her comments on Panel II. Perhaps her paper may provide her context for the phrase "judicial anxiety." Meantime, maybe Mel Brooks is working on this. (I envision a Broadway musical "5-4" that might address my anxiety with the Court.)

So, has constitutional law become a blood sport?

An early hit to "judicial anxiety," which does seem like a good term since many over the years do have some of that (e.g., the New Mexico SSM ruling has led to some 'judicial anxiety') led to this:

Constitutional law develops over time with a special role provided to the people. Prof. Balkin has covered this (especially regarding their role in choosing judges) and Pamela Karlan, who has a new collection out, has too.

A form of a book Karlan co-authored that discusses this theme can be downloaded online:

I found it quite good. YMMV.

Oh. If Shag wants more reading, Volokh Conspiracy has a post that lists a range of material related to recess appointments.

I have not read all of the sources referenced by Joe on "judicial anxiety" but they seem to reflect the anxiety of other than the judges/justices with respect to who may be appointed judges/justices. But consider whether the Justices on the Court have anxiety in coming to a decision, especially when there is a so-called "swing-Justice" on the Court. I await Prof. Katz's paper for her context. Or if she peruses this Blog, perhaps a comment might relieve my anxiety. I remained amused by the possibility that "judicial anxiety" may be similar to "judicial activism" and "judicial restraint." Query: Is "restraint" a form of treatment for "anxiety?"

The BU Law School Conference on Political Dysfunction closed with Panel VII "What are we to do about dysfunction? Proposed cures and their constitutional connections.? Based upon my observations, the Conference did not result in consensus on whether or not there is political dysfunction and if so, whether there were constitutional cures. This Panel included Ken Kersch of Boston College Department of Political Science, who infrequently posts at this Blog. {Prof. Kersch's most recent post of 10/24/13 was a short whimsical post on The Claremont Institution's 2014 Statesmanship Award honoring Ted Cruz.)

I haven't had access to Prof. Kersch's paper but in his remarks it seemed that he was not satisfied that there was political dysfunction; that if there were, he seemed to suggest the need for more constitutional chatter [I think that was his phrase] and that it should be adversarial. Should constitutional scholars be adversarial? The Internet provides a ready forum for such. But does that help to better understand the Constitution as the adversarial approach may provide for more "law office history"? Might this contribute to constitutional law as a blood sport?

Speaking of Ms Karlan ...

"Pamela Karlan, a noted voting-rights expert and professor at Stanford Law School, will join the Obama Administration shortly as Deputy Assistant Attorney General in charge of the voting-rights section"

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