The Constitution and the Court during Reconstruction

Judicial Interpretation of the Civil War Amendments

The Civil War amendments gave new constitutional significance to questions of civil rights and civil liberties in the United States and in individual states.  The amendments also sparked renewed questions about the power of Congress to enact legislation interfering with the internal governance of states.  What legislation is “appropriate” to enforce the amendments?  By the time the Civil War Amendments were adopted, the power of the federal courts to interpret the Constitution was largely conceded.  Their interpretations of the Civil War Amendments, however, particularly Supreme Court’s interpretations, have generated political controversies that are yet to be settledThe Fourteenth Amendment has been the source of most litigation, but the Thirteenth and Fifteenth have yielded important decisions and political responses as well. 

It is beyond the scope of this course to provide a detailed analysis of decisions interpreting the Civil War Amendments.  The historical framework provided in this course, however, lays the foundation for understanding ongoing controversies surrounding those interpretations. Antifederalists who lobbied for the addition of a Bill of Rights, for example, might well be surprised  at how the Bill of Rights has been used to limit state powers.  Federalists might well be surprised by the shift from property rights to other kinds of rights and liberties.   

What follows is a brief synopsis of judicial interpretations of the Civil War Amendments.  The goal is to provide a broad overview of how the federal courts have shaped and reshaped the American constitutional order since the Civil War, yet another example of how the third branch has grown from insignificance to playing a powerful role in American politics.   

Thirteenth Amendment

By its terms, the Thirteenth Amendment is self-executing.  That is, Congress did not have to adopt legislation to carry out the mandate ending the legal institution of slavery in the United States.  Soon after the passage of the amendment, however, several former slave states began enacting so-called Black Codes to restrict the rights of their newly freed black populations.  Some states prohibited blacks from owning land and then declared that landless residents in the state were vagrants who were subject to arrest and imprisonment.  Some states converted former slaves into indentured servants bound by labor agreements to serve their masters. Black Codes evolved into statutes known as “Jim Crow” laws that prohibited blacks from using any white public facilities.  Blacks were confined to substandard schools and other public accommodations and consigned to a status of social inferiority.  An important interpretive question arose: did the Thirteenth Amendment prohibit only the legal relationship of slavery and involuntary servitude, or did it also authorize Congress to outlaw racial discrimination?

The 13th Amendment and Civil Rights

In 1866 and again in 1875, Congress adopted Civil Rights Acts that prohibited discrimination on the basis of race in public facilities like hotels, restaurants, theaters and public transportation.  The 1875 act also prohibited states from excluding blacks from jury service.  Congress justified the far-reaching incursions into what previously had been understood to be fundamental state prerogatives regarding their own governance in part as “appropriate” to enforce the Thirteenth Amendment.  In the Civil Rights Cases (1883), the Supreme Court held that the 1875 Civil Rights Act was unconstitutional. The court stated that Congress has only limited authority under the Thirteenth Amendment to adopt statutes to eliminate the “badges and incidents of slavery” and that the 1875 statute reached too far.

After the Civil Rights Cases, the Thirteenth Amendment seemed to have little if any role to play in protecting civil rights in the United States.  Emphasis shifted to the powers of Congress under section one of 14th Amendment to address civil rights issues.  In 1968, however, the Supreme Court breathed new life into the Thirteenth Amendment.   In Jones v. Alfred H. Mayer Co., the Supreme Court looked to the Civil Rights Act of 1866, enacted under the authority of the Thirteenth Amendment, to declare illegal the practice of racial discrimination in private real estate transactions.  

The Fifteenth Amendment

The purpose of the Fifteenth Amendment was to enfranchise black males of voting age.  Congress enacted the Enforcement Act of 1870 as a means for enforcing the amendment.  That law provided for criminal sanctions against municipal officials who denied the right to vote to black males.  In United States v. Reese (1876), the Supreme Court struck down the Enforcement Act of 1870.  It held that the Amendment did not confer the right of suffrage.  Rather, it prohibits exclusion from suffrage on the basis of race, color, or previous condition of servitude.  The Enforcement Act was not drafted narrowly enough to qualify as “appropriate legislation” to enforce the amendment.  Reese signaled that the Supreme Court did not understand the Fifteenth Amendment as restricting state and local officials in the conduct of their elections as much as it did federal officials in the conduct of federal elections.  Consistent with that view, in Williams v. Mississippi (1898), the court upheld a state law that required voters to pay poll taxes and pass literacy tests in order to vote.  Then in James v. Bowman (1903), the court denied the federal government authority to prosecute a private citizen who by bribery had prevented blacks from voting in a congressional election in Kentucky.  The Fifteenth Amendment seemed to be a dead letter, and attention shifted to the Fourteenth Amendment’s due process and equal protection clauses to protect voting rights.

Then, in 1966, in South Carolina v. Katzenbach, the court infused new life into the Fifteenth Amendment. It upheld the sweeping provisions of the Voting Rights Act of 1965 as a valid exercise of the powers of Congress’ under the enforcement provision of the amendment.  The act outlawed literacy tests.  Section 5 of the Voting Rights Act gave the United States Attorney General the power to oversee state voting laws to determine whether they contained racially discriminatory purposes or effects.  The Voting Rights Act also authorized the Attorney General to appoint federal observers to monitor voting procedures in selected parts of the country. Congress renewed the Voting Rights Act several times between 1965 and 2006.  The Supreme Court upheld the Voting Rights Act in several cases during this period.

Then, in 2013, the Supreme Court invalidated many of the provisions of the Voting Rights Act.   The court released nine states and many municipalities from the requirement that they obtain prior approval from the Attorney General before making changes to their election laws.  Chief Justice John Roberts wrote for the Supreme Court’s majority:   “Our country has changed. While any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”  Shelby County v. Holder (2013).