FEDERAL ENFORCEMENT OF CIVIL RIGHTS: RECONSTRUCTION, DECONSTRUCTION, RESUSCITATION, AND? 1780s Each state chose whether or not to recognize another state's slave property within its boundaries, and generally did not; Fugitive Slave Clause of Constitution therefore a real boon to slave owners. 1789 Constitution contains three provisions concerning slavery: Article I, sec. 9, prohibits Congress from outlawing the slave trade until 1808; Article I, sec. 2, requires apportionment of legislators on the basis of the whole number of free persons in each state and 3/5s of the others; and Article IV, section 2, cl. 3, is the fugitive slave clause requiring states to deliver up escaped slaves. 1791 Bill of Rights amends Constitution 1833 Barron v. Mayor of Baltimore, 32 U.S. (7 Pet) 243 (1833) The Bill of Rights does not limit state power; does not protect Maryland man from state expropriation of property without compensation. 1840 London anti-slavery conference attended by Lucretia Mott & Elizabeth Cady Stanton. 1842 Prigg v. Pennsylvania Pennsylvania statute which prohibited any person from removing blacks from state by force or violence with the intention of detaining them as slaves is unconstitutional; Congress has the power to assist owners in securing return of escaped slaves, as an exclusive national power, so any contrary state law is invalid. Intensified fight in national arena. 1848 Seneca Falls--first women's rights conference 1850 Compromise of 1850 admitted California as a free state; but placed no restrictions on the balance of the territories acquired from Mexico; required more effective provision for return of fugitive slaves. Fugitive Slave Act made the national government the 1
guarantor of property in slaves; a model for the 1866 CRA? 1854 By now three groups of abolitionists: radicals such as New York lawyer Alvan Stewart, Boston freethinker and lawyer Lysander Spooner, and reform editor William Goodell who after 1840 argued that slavery was illegitimate everywhere and could be abolished by the federal government as a violation of the 5th Amendment's due process guarantee, Article IV's republican government guarantee, and other clauses of federal and state constitutions. A much bigger group made up the moderate mainstream led by westerner Salmon P. Chase, that denied the federal government had the power to abolish slavery but supported the free soil movement to prevents its spread; the Garrisonian abolitionists led by William Lloyd Garrison argued from a religious doctrine of perfectionism and the tactic of disunion, supporting secession from the Union which was the bulwark of slavery. Kansas-Nebraska Act and "popular sovereignty" to decide whether the territories organized as Kansas and Nebraska would end up slave or free; Led to the establishment of the Republican Party from Free Soilers, antislavery Democrats, and Whigs 1856 Bleeding Kansas--civil war in Kansas. 1857 Dred Scott--Dred Scott and Harriet Scott were slaves bringing a typical freedom case, claiming that they had resided for a certain period of time with their masters in free territory, and therefore became free, and that slavery did not reattach when they reentered slave territory. They were slaves of army doctor taken to military post in Illinois, then to Louisiana territory. Harriet was brought there by another owner and then sold to the doctor; they married with consent of their owner and had children, one born on a steamboat outside of Missouri border, one in Missouri. The doctor brought them back to Missouri and then ultimately sold the whole family. They had litigated and lost in Missouri state court. Now owned by a New 2
York owner, raising diversity of citizenship jurisdiction in federal court possibility, if slave was a citizen. Owner's counsel argued both that Scott was not a citizen because he was black, therefore there was no jurisdiction; and on the merits that he was still a slave. If he was enough of a citizen to get into federal court then other freedom suits could be brought into federal court and stop enforcement of the fugitive slave act of 1850 by getting jury trials there. Trial judge ruled he was a citizen, but still a slave on the merits. Supreme Court issued 9 different opinions, including Taney's, which he claimed was the Court's opinion. Taney held that blacks could not be citizens for diversity purposes because they were considered an inferior and degraded race at the time of the framing of the Constitution. The framers did not mean to include them, and therefore they couldn't be considered citizens now without changing the Constitution. The federal government has no right to interfere with the states' treatment of blacks, slave or free, except to enforce the rights of the owner. Taney did not get a clear majority on inability to sue in federal court if black; did on inability if a slave. Conventionally held that his due process argument that Congress could not deprive a citizen of his property because he brought it into a free territory of the United States is the origin of the modern doctrine of substantive due process (Hyman & Wiecek thought this merely a throwaway argument and think the source is an 1856 case instead). 1860 Election of Lincoln; secession. 1861 Ex Parte Merryman--(6 weeks before Sumter), J. Taney. Habeas case for Merryman, notorious pro-secessionist jailed for treason whom Lincoln refused to release. Taney's opinion gave Democrat-secessionists a legal justification with its stirring statement about habeas, hitherto unimportant either in federal or in state courts. Taney had a number of opinions prepared and ready-made in secret for rulings against many of Lincoln s actions, but the Court managed to keep most of the issues off the docket. 3
Union armies occupy, producing all kinds of problems with security and local government, "rehearsals for reconstruction." After secession, the firing on Fort Sumter, and the beginning of the Civil War, anti-secessionist legal and constitutional experts who rallied to Lincoln's support developed an "adequacy of the Constitution" doctrine to justify blockades of the port cities of the seceded states, the unauthorized disbursement of funds to anti-secessionists; calls for military volunteers; the mustering of militia into federal service, 18,000 civilian arrests (mostly quickly released) where local police failed to enforce criminal laws against arson, assault and riot against secession activists or even joined in. This theory argued that since 1789 the Constitution had been misinterpreted as primarily a network of negatives, but that its essential purposes also imposed duties upon the national government to act positively to preserve the nation as the base for a more perfect union, to guarantee to every state a republican form of government (Article IV, sec. 4) and to provide for the general welfare (Article I, section 8). Along with abolitionist Timothy Farrar, they argued that the Declaration of Independence was an additional statement of national duties to those in the Constitution. Prize Cases- 5-4, H & W say sanctioned adequacy of constitution arguments about the Declaration as source of national duties moderate abolitionists moved into Republican party ranks and merged with those with primarily prounionist sentiments. For the adequacy writers victory was the primary goal, but for abolitionists such as Salmon P. Chase, now Lincoln's Secretary of the Treasury, they expected more, protection of citizens' rights by the nation in the states. (H & W) 1862 Mid-year. Congress repeals Fugitive Slave Act. September 22. Preliminary Presidential Emancipation Proclamation and recruitment into the Union Army of 4
blacks. 1863 January 1, Emancipation Proclamation declares slaves in the areas still in rebellion free. March. Congressional legislation on habeas corpus, indemnity, and removal greatly enlarged federal judicial jurisdiction, at a time that secessionists and sympathizers were bringing lawsuits against army officers in state court. Raising the federal defense, the case could be removed to federal court where blacks could testify and all had to swear loyalty to the Union. Radical Republicans like Thaddeus Stevens and Charles Sumner talking about "state suicide", "territorialization" and "conquered provinces" but without a majority in Congress 1864 Republican coalition largely agreed on republican form of government; abolition of slavery; some included political equality; Lincoln's proposals (10% reconstruction solution) more limited. 1865 Lincoln moving ahead of Congress seeing proposed 13th Amendment in terms of aspirations of Declaration of Independence and moving toward recognition of political rights (assassinated April 14). Radicals like Charles Sumner arguing Bill of Rights set minimum standards for defining rights that nation should guarantee to all Americans, included in the 13th Am. Mid-year, Army and Freedman's Bureau courts had to step in where local justice not functioning Oct, 1865, beginning in Mississippi, Black Codes which evade the intent of 13th Amendment; northern states largely dropped own diluted black codes Dec. Congress reconvenes with Joint Committee on Reconstruction December 31: Thirteenth Amendment (prohibited slavery and involuntary servitude throughout the United States) 5
1866 early--heavy majority of Congress accepted some of Sumner's program as increased evidence of unpunished attacks on property and persons of freed people and on unionists and soldiers in the ex-confederate states April. President Johnson ordered halt to Army and Freedmen's Bureau trial of civilians in the South, but General Grant defied him, authorized Army and Bureau officers to arrest and hold for trial in military courts persons accused of violating state criminal laws against whom state authorities failed to act. Civil Rights Act passed over President Johnson's veto; Freedman's Bureau Act. introduction of the Fourteenth Amendment to resolve any constitutional doubts about Civil Rights Act of 1866 and to enshrine it in Constitution. 100,000 complaints to Freedman's Bureau this year. South refused to voluntarily ratify 14th Amendment; Civil Rights Act of 1866 was unenforceable 1867 Military Reconstruction (3 Acts) 1866-68 Ratification of the 14th Amendment (ratified July '68) Split in women's movement over supporting 14th Amendment with "male" language in it: National Women's Suffrage Association (Susan B Anthony & Elizabeth Cady Stanton); and more conservative American Women's Suffrage Association (AWSA), (Lucy Stone and Henry Ward Beecher) [later merged into NAWSA] 1868 Feb-May: impeachment of President Johnson 1870 Reenactment of CRA of 1866; Force Acts DOJ and federal courts extensively involved in administration of criminal justice Fifteenth Amendment (the vote) 6
1871 Unpunished violence escalates Ku Klux Klan Act (predecessor of 1983) which criminally punished conspiracies to deprive a class of persons of equal protection of the laws and created civil liability for deprivations of federal constitutional or statutory rights. Paris Commune scares some justices of Supreme Court 1872 Presidential election in which the Negro is becoming a political liability Bylew v. United States--1866 act giving federal courts jurisdiction over civil and criminal causes "affecting persons who are denied or cannot enforce in the courts or judicial tribunals of the state or locality where they may be any of the rights secured to them by [the act]" did not apply to case in which black witnesses held incompetent to testify against whites under Kentucky law (black woman murdered by whites in front of her black family) because witnesses are not "persons affected" in government's prosecution of the white defendants. 1873 President Grant ordered DOJ to stop bringing criminal prosecutions; pardoned those convicted earlier by federal courts. Bradwell and Slaughterhouse (5-4), narrowing scope of 13th Amendment; and 14th Amendment privileges and immunities clause 1874 By Fall, Grant's order led to renewed large-scale violence; and AG ordered resumption of federal prosecution of civil rights violators, but cases now pending challenging jurisdiction of federal courts, so ordered them to desist until Supreme Court spoke. 1875 Public Accommodations civil rights acts passed in tribute to Charles Sumner (died 1873) United States v. Reese federal criminal prosecution 7
against two Kentucky municipal elections inspectors who refused the vote to blacks; for violations of voting rights section of 1870 Enforcement Act, because the act not expressly limited to actions that were racially motivated, held exceeded Congressional power under 15th Am. and invalidated prosecutions. United States v. Cruikshank criminal conspiracy section of 1870 act could not be applied to three persons convicted of lynching blacks and interfering with their right of peaceable assembly, because no allegation that they had assembled to petition the federal government, and therefore no national citizenship rights under 14th Am. were implicated; nor any due process right which does not extend to one citizen as against another. The situation was virtually a localized civil war with rival governors and armed conflict between Republicans in the parish courthouse and a KKK army which stormed it. 1875, 1876 Elections in Mississippi and South Carolina marred with frequent violence; Republican coalition disintegrating and Democratic strength being reasserted. 1876 Election compromise: Democratic leaders promise not to contest Hayes' election (no majority of electoral votes) if federal troops are withdrawn from the South and southern Democrats are included in the cabinet 1877 Compromise led to withdrawal of federal troops from the South 1878 Only 25 federal civil rights prosecutions brought in Southern federal courts 1879 Strauder v. Virginia reversed murder conviction of black tried before jury from which other blacks excluded by law; 1882 United States v. Harris--construing criminal part of KKK Act and concluding that cannot punish members of a lynch mob who seized prisoners held by state deputy sheriff because the 14th A does not reach purely private conduct (for many years thought to also block 8
civil conspiracy actions). 1883 Civil Rights Cases--invalidated public accommodation sections of 1875 act because neither the 13th nor the 14th Amendments gives Congress the power to prohibit private discrimination in public accommodations. 1884 Ex Parte Yarbrough--sustained conviction of private actor under KKK act for using violence against blacks voting in a federal election. 1892 Logan v. United States--Congress has the power to punish conspiracies to injure persons in custody of the United States marshall. 1896 Plessy v. Ferguson, approving separate but equal, gives vitality to Jim Crow laws throughout the South. 1909 Brawner v. Irvin--black woman who was publicly whipped, arrested, held without bond or bringing any charge by police chief who accused her of striking child of his relatives and state courts refused to prosecute him; narrowly construed privileges and immunities clause to say not deprived of any rights secured by the Constitution and laws of the United States as opposed to rights pertaining to a citizen of the state. 1871-1920 Only 21 cases decided under 1983 1927 Nixon v. Herndon--one of rare cases, did not mention 1983 but reversed dismissal of damage action against election officials who had enforced discriminatory primary election statute in violation of the 14th Amendment. 1938 U.S. v. Carolene Products--footnote 4 suggests heightened scrutiny for fund. rts; discrete & insular minorities 1939 Lane v. Wilson--expressly allowed voting action to go forward under 1983. Attorney General Frank Murphy establishes civil rights section in the Department of Justice, to study dormant 9
statutes and to begin enforcement. 1941 United States v. Classic construing "under color of" language in 242. 1945 United States v. Screws-- 242 (criminal section of KKK act) construing as requiring specific intent to deprive someone of their federal rights in order to save from possible constitutional invalidity. United States v. Williams--Court split 4-4 over 241 (crime for 2 or more persons to conspire to oppress any citizen in the free exercise of any right or privilege secured by the Constitution or laws of the United States) on the issue of whether it included only rights relating to relationship between the federal government and a citizen or if it covered rights secured by the 14th Amendment against state action too. Williams was private detective employed by lumber company who accompanying police officers and flashing his badge, beat four suspects until they confessed. Question unresolved until 1966. 1947 Justice Hugo Black's dissent in Adamson v. California claiming that the 14th Amendment gave the national government power to protect the Bill of Rights against state infringement sparked debate over the meaning and scope of national authority to enforce civil rights. Justice Black, joined by Justice Douglas, unsuccessfully argued for "total incorporation" of the guarantees of the Bill of Rights through the Fourteenth Amendment. 1951 Collins v. Hardman (later overruled) 1985, civil conspiracy section of KKK act only reaches conspiracies under color of state law. 1954 Brown v. Board of Education--overruling Plessy's doctrine of separate but equal. 1961 Monroe v. Pape-- resuscitating the KKK Act, 1983 1960s "Selective incorporation" of almost all the specific guarantees of the bill of rights through the 14th Amendment greatly expands the rights that may be enforced (against the states) through 1983. 10
1964 After assassination of President Kennedy, passage of Civil Rights Act of 1964 (employment). 1965 Voting Rights Act (enforcing the 15th Amendment) 1966 United States v. Price--indictments returned against murderers of civil rights workers Schwerner, Chaney, and Goodman in Mississippi under 241 & 242, decided that 242 could reach private defendants who acted in concert with state officials under color of state law; and that 241 covers conspiracies to deprive of 14th Amendment rights. 1968 Civil Rights Act including fair housing section 1971 Griffin v. Breckenridge overrules Collins (1951) and relying on power under 13th Amendment makes 1985 civil conspiracy statute applicable to certain private conspiracies, to interfere with the right of interstate travel, where intent was to deprive of equal privileges. 1972 Education Amendments 1973 Rehabilitation Act 1975 Age Discrimination in Employment Act 1990 Americans with Disabilities Act 1991 Civil Rights Act of 1991, reversing some of limiting decisions of US Supreme Court and adding remedies 11