White on the Origins of Civil Rights

G. Edward White, University of Virginia School of Law, has posted The Origins of Civil Rights in America, which is forthcoming in the Case Western Reserve Law Review.  Here is the abstract:    

This article makes three contributions. First, it represents the first effort to identify and trace the origins of the legal category of civil rights in American constitutional jurisprudence. Contrary to what has been conventionally thought, the category of civil rights did not extend back to the Declaration of Independence and the framing of the Constitution. There was no established category of “civil rights” in eighteenth- and early nineteenth-century American law, although one can find discussion of the “privileges and immunities” of citizens of the United States and occasional mention of the term “civil rights.” The category came into being with the passage of the Civil Rights Act of 1866 and received its first judicial interpretations in the context of the Reconstruction era constitutional amendments. In the decades of the 1870s, 1880s, and 1890s the category was refined, but there was never a clear consensus about the content or scope of civil rights, or the extent to which they could be enforced by the federal government.

Second, the article seeks to revise a conventional narrative about the constitutional history of the Reconstruction era. In that narrative Reconstruction began as a distinctly libertarian and egalitarian vision, premised on the creation of new universal rights of citizenship and enforcement of those rights by the federal government. In the years between 1866 and 1876 that vision was derailed and the prospective rights of former African-American slaves in confederate states largely abandoned. The Supreme Court in the tenures of Chief Justices Salmon Chase and Morrison Waite allegedly bore some responsibility for the abandonment of the original goals of Reconstruction, as illustrated by the Court’s narrow reading of the Fourteenth Amendment’s Privileges and Immunities and Equal Protection Clauses in the Slaughter-House Cases and its invalidation of the provisions of the Civil Rights Act of 1875 preventing racial discrimination in public accommodations in the Civil Rights Cases. The article finds that in fact the Waite Court developed a civil rights jurisprudence that anticipated protection for, and federal enforcement of, categories of “created” or “conferred” rights, such as those enumerated in the Fourteenth and Fifteenth Amendments. The mostconspicuous example of such rights was the right not to have one’s ability to vote in federal elections restricted on racial grounds. Both the decisions in the Slaughter-House Cases and the Civil Rights Cases can be shown to be consistent with that jurisprudence.

Finally, the article has implications for a longstanding debate about the “original understandings” of framers of the Reconstruction Amendments about whether the Fourteenth Amendment was designed to “incorporate” some of the provisions of the Bill of Rights against the states. The article finds that the Court’s civil rights jurisprudence was driven by a concern that too broad readings of the power of the federal government to enforce new “civil rights” would radically disturb the existing balance of state power. That concern emanated from an assumption that the framers of the Fourteenth Amendment did anticipate a robust definition of the privileges or immunities of national citizenship and of a right to equal treatment under the law, both of which could be enforced by the federal courts. Precisely because of this assumption, Chase and Waite Court majorities sought to define the meaning of “privileges or immunities” and “equal protection of the laws” narrowly.

The article concludes by maintaining that a proper understanding of the category of “civil rights” at its origin needs to take into account the fact that both the conceptualization and interpretation of the category was driven by established antebellum understanding about “rights” and federalism, so that the category remained fluid and uncertain through the 1890s.