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Download File DEFYING CONGRESSIONAL INTENT: JUSTICES MILLER AND BRADLEY ALTER THE COURSE OF RECONSTRUCTION John Montoya* Following the end of the Civil War, the 39th Congress met to consider legislative proposals that would grant to Blacks the same civil rights and statutory guarantees then afforded to whites. To that end, the 39th Congress passed two Constitutional amendments, several civil rights bills, and a series of enforcement acts. In the process, Congress made clear in its debates that the federal government would have an expanded role in the domain of civil rights protection and enforcement of Constitutional mandates. The United States Supreme Court, in considering the federal government’s authority, failed to acknowledge the intent of Congress in this respect. This article argues that the failure of the Court to recognize and apply this intent significantly impeded the development of civil rights for Blacks and encouraged a disregard for equal enforcement of Constitutional guarantees that continues, in part, to the present. I. INTRODUCTION ................................................................ 83 II. WHAT THE FRAMERS INTENDED ....................................... 86 A. The Civil Rights Act of 1866 ....................................... 87 B. The Fourteenth Amendment ........................................ 89 C. “Deprive” And “Deny”: The Enforcement Acts of 1870 and 1871 ...................................................................... 95 D. The Clear Message from Congress .............................. 99 III. JUSTICES MILLER’S AND BRADLEY’S CONSEQUENTIAL MISUNDERSTANDING OF CONGRESSIONAL INTENT ...... 101 A. Slaughter-house Regulation ....................................... 102 B. The Colfax Massacre ................................................. 109 * J.D., University of Seattle School of Law, Cum Laude, 2003. The author, on behalf of plaintiffs, litigated a range of employment law cases, including employment discrimination cases, in both state and federal court. The author also served for several years as the Deputy Director of the Seattle District Office of the Equal Employment Opportunity Commission. No. 10:2] DEFYING CONGRESSIONAL INTENT 83 C. Assessing the fallout from Cruikshank ....................... 120 D. “Running the Slavery Argument into the Ground” ..... 121 IV. THE FULLER COURT’S FURTHER EROSION OF CONGRESSIONAL INTENT ............................................ 126 A. Riding in Comfort ..................................................... 127 B. Further Setback ......................................................... 130 V. CONCLUSION.................................................................. 133 VI. APPENDIX .................................................................. 134 I. INTRODUCTION The Civil War was over and, as of December 1865, the Thirteenth Amendment was enshrined in the Constitution.1 Little changed, however, in the aftermath of the conflict. Shortly after the war, the United States Congress received reports of widespread violence against recently freed slaves.2 Restrictive laws called “Black Codes” required Black men to sign labor contracts or face prosecution and limited the ability of former slaves to own firearms, to travel from one county to another without a pass, to serve as a minister, to testify in court, and to serve on juries.3 Congress responded to these reports and conditions by enacting the Civil Rights Act of 1866, the Fourteenth and Fifteenth Amendments to the Constitution, and a series of Enforcement Acts—all of which were designed to bring a measure of protection and equal rights to the freedmen4. 1 U.S. CONST. amend. XIII; infra Appendix. 2 CONG. GLOBE, 39th Cong., 1st Sess. 39, 41 (1866) (statement of Senator Henry Wilson) [hereinafter 39th Cong. 1st Sess.]. 3 Id. at 474; ERIC FONER, THE SECOND FOUNDING 47–48 (2019). 4 U.S. CONST. amend. XIV; U.S. CONST. amend. XV; The Civil Rights Act of 1866, ch. 31, § 1, 14 Stat. 27 (1866), infra Appendix, (contains the relevant text of the Civil Rights Act of 1866, the Fourteenth and Fifteenth Amendments as well as the identity and relevant text of the enforcement acts passed by Congress during the period in question.) 84 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 10:2 With the passage of these Amendments and Acts, Congress provided the United States Supreme Court with a singular opportunity to shape post-Civil War constitutional law. The language Congress adopted in these measures reflects Congressional intent to ensure fundamental rights for all against state action, including state inaction, and to provide universal due process and equal application of law where states were delinquent.5 It was left to the Courts to effectuate this intent and thereby secure the nascent liberties of the freedmen in the South. The Supreme Court profoundly failed to do either. The Supreme Court’s failures in this respect are incomprehensible given the debate language of the Framers. In particular, the words of John Bingham, Thaddaeus Stevens, James Wilson, and Jeremiah Wilson in the House, and Jacob Howard of Michigan, Lyman Trumbull of Illinois, and John Pool of North Carolina in the Senate, the principal Framers, clearly expressed Congress’s intent in passing the Amendments and Acts.6 As described below, the Court, led by Justices Samuel Miller and Joseph Bradley, chose to largely ignore this language and the Framers’ post-war objectives as expressed during the debates. These justices, with little or no discussion of these objectives, settled on interpretations grounded in the jurisprudence of pre-war federalism.7 It is perhaps debatable whether different outcomes at the Supreme Court during and shortly after Reconstruction could have prevented the violence, the denial of civil and legal rights, and the overall exclusion of the recently freed slaves from white society during this period and later.8 What is not debatable is the deep disconnect between how Miller and Bradley understood the Fourteenth Amendment and the Enforcement Acts, and how the 5 See discussion infra Section II 6 See Id. 7 See discussion infra Section III. 8 This article is focused on outcomes at the United States Supreme Court. Congressional intent fared better in the lower courts. See Robert J. Kaczorowski, Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction, 61 N.Y.U. L. REV. 863, 867–868 (1986). No. 10:2] DEFYING CONGRESSIONAL INTENT 85 Framers of those Amendments and Acts understood them. The failure of these justices, especially in Slaughter-house9 and Cruikshank,10 to give meaning to Congressional intent helped institutionalize segregation for the next several decades, and facilitated the rise of Jim Crow. As noted by Reconstruction scholar Eric Foner, “[w]hen it comes to the status of Black Americans, however the 14th Amendment’s promise has never been fulfilled.”11 This article argues that the horror of the Jim Crow era, including the physical terror perpetrated by non-state actors, might have been prevented or curtailed had the Waite and Fuller Courts: (1) endorsed the scope of the privileges and immunities clause as intended by the Framers, including the incorporation of the first eight amendments, (2) acknowledged that under the Fourteenth Amendment and the Enforcement Act of 1870, state action was broader than the legislative branch, and that state inaction, in the form of denials or omissions of protection by the judicial and executive branches of state government, was violative of the Fourteenth Amendment, (3) acknowledged or understood that Section 6 of the Enforcement Act of 1870 was directed at the conduct of individuals, and required neither a racial nor state action predicate, and, (4) given the term “civil rights” a construction sufficiently tolerant of the broader goals of the Framers of the Fourteenth Amendment, as suggested by Justice Harlan. Section II, What the Framers Intended, discusses the Congressional debates that preceded passage of the Civil Rights Act of 1866, the Fourteenth Amendment, and the Enforcement Act of 1870. This section is critical to understanding the intent of Congressional leaders at that time to provide freedmen rights equal 9 The Slaughter-house Cases, 83 U.S. 36 (1873); see discussion infra Section III. 10 United States v. Cruikshank, 92 U.S. 542 (1875); see discussion infra Section III 11 ERIC FONER, The Lost Promise of Reconstruction, N.Y. TIMES (Sept. 7, 2019) at SR 7. 86 COLUMBIA JOURNAL OF RACE AND LAW [Vol. 10:2 to those of whites and to prevent the states from usurping these rights. Section III, Justices Miller’s and Bradley’s Misunderstanding of Congressional Intent, discusses the lead opinion of Justice Miller in Slaughter-house Cases,12 and the opinions of Justice Bradley in Cruikshank13 and The Civil Rights Cases.14. The discussion of these cases illustrates the failure of the Court justices to acknowledge the Framer’s intent as to the Fourteenth Amendment and the Enforcement Act of 1870, especially Sec. 6 of that Act. Section IV, The Fuller Court’s Further Erosion of Congressional Intent, discusses the impact of Justices Miller’s and Bradley’s opinions discussed in Section II, and the failure of the Fuller Court justices to acknowledge Congressional intent as to the Fourteenth Amendment and the Enforcement Act of 1870. Section V, Conclusion, summarizes the lasting damage and impact of the cases discussed in Sections II and III to the causes of civil rights and racial justice. II. WHAT THE FRAMERS INTENDED In December 1865, about eight months after President Andrew
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