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The Politics of Judicial Interpretation the Federal Courts, Department of Justice, and Civil Rights, 1866-1876

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The Politics of Judicial Interpretation the Federal Courts, Department of Justice, and Civil Rights, 1866-1876 The Politics of Judicial Interpretation The Federal Courts, Department of Justice, and Civil Rights, 1866-1876 Robert J. Kaczorowski with a new introduction The Politics of Judicial Interpretation RECONSTRUCTING AMERICA SERIES Paul A. Cimbala, series editor 1. Hans L. Trefousse Impeachment of a President: Andrew Johnson, the Blacks, and Reconstruction. 2. Richard Paul Fuke Imperfect Equality: African Americans and the Confines of White Ideology in Post-Emancipation Maryland. 3. Ruth Currie-McDaniel Carpetbagger of Conscience: A Biography of John Emory Bryant. 4. Paul A. Cimbala and Randall M. Miller, eds. The Freedmen’s Bureau and Reconstruction: Reconsiderations. 5. Herman Belz A New Birth of Freedom: The Republican Party and Freedmen’s Rights, 1861 to 1866. 6. Robert Michael Goldman “A Free Ballot and a Fair Count’’: The Department of Justice and the Enforcement of Voting Rights in the South, 1877–1893. 7. Ruth Douglas Currie, ed. Emma Spaulding Bryant: Civil War Bride, Carpetbagger’s Wife, Ardent Feminist–Letters, 1860–1900. 8. Robert Francis Engs Freedom’s First Generation: Black Hampton, Virginia, 1861–1890. The Politics of Judicial Interpretation: The Federal Courts, Department of Justice, and Civil Rights, 1866–1876 Robert J. Kaczorowski Fordham University Press New York 2005 Copyright © 2005 Fordham University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted in any form or by any means—electronic, mechanical, photocopy, recording, or any other—except for brief quotations in printed reviews, without the prior permission of the publisher. Reconstructing America Series, No. 9 ISSN 1523-4606 Library of Congress Cataloging-in-Publication Data Kackorowski, Robert J. The politics of judicial interpretation: the federal courts, Department of Justice and civil rights, 1866–1876 / Robert J Kaczorowski. p. cm.—(Reconstructing America (Series): no. 9) Originally published: Dobbs Ferry, N. Y.: Oceana Publications, 1985. Includes bibliographical references and index. ISBN 0–8232–2382–5 (pbk.) 1. African Americans—Civil rights—History—19th century. 2. Judicial review—United States—History—19th century. 3. Political questions and judicial power—United States—History—19th century. 4. Reconstruction (U.S history, 1865–1877) I. Title. II. Series. KF4757.K33 2005 342. 7308’ 73—dc22 2005000446 Printed in the United States of America 08 07 06 05 5 4 3 2 1 First Oceana Publications edition, 1985 First Fordham University Press edition, 2005 To Jane, Tom, and Paul Contents Acknowledgments ix Abbreviations xi Introduction to the Fordham University Press Edition xiii Introduction to the Oceana Publications Edition xxiii 1 Judicial Interpretations of National Civil Rights Enforcement Authority, 1866–1873 | 1 2 The Freedmen’s Bureau and Civil Rights Enforcement, 1866–1868 | 21 3 The Politics of Civil Rights Enforcement in the Federal Courts, 1866–1873 | 38 4 The Department of Justice and Civil Rights Enforcement, 1870–1871 | 62 5 The Department of Justice and the Retreat from Civil Rights Enforcement, 1872–1873 | 80 6 The Judicial Administration of Civil Rights Enforcement, 1870–1872 | 93 viii Contents 7 The Supreme Court as Legislature: The Judicial Retreat from Civil Rights Enforcement | 108 8 The Judicial Curtailment of Civil Rights Enforcement, 1874–1875 | 140 9 The Reinstitution of Decentralized Constitutionalism: The Supreme Court and Civil Rights, 1876 | 161 Notes 189 Index 233 Acknowledgments Over the years of researching and writing this book I have become indebted to many people. I would like to acknowledge their contributions and express my deep gratitude to them. The cheerful and skillful assistance of the staffs of the libraries and archives in which I worked lightened the solitary burden of histor- ical research. I wish to thank the staffs of the National Archives, Library of Congress, Chicago Historical Society, The Filson Club, Maryland Historical Society, Maine Historical Society, New Jersey Historical Society, Historical Society of Pennsylvania, Rutherford B. Hayes Library, Burton Collection of the Detroit Public Library, New York Public Library, Columbia University Library, William R. Perkins Library of Duke University, Houghton Library of Harvard University, University of Iowa Library, University of Minnesota Libraries, Southern Collection of the University of North Carolina, and Alderman Library of the University of Virginia. Grants from the National Endowment for the Humanities, the Wagner College Faculty Research Fund, the Putnam D. McMillan Fund, and the University of Minnesota enabled me to work in these libraries and archives, and I am grateful for their support. Several people directly and indirectly helped me bring this work to comple- tion. Debbie Moritz edited the manuscript for publication. Dorothy Blumenthal skillfully proofed it with typical thoroughness. To her and her family I am espe- cially grateful. Three individuals deserve special recognition for the professional expertise, emotional support, and personal friendship they have given to me. Paul L. Murphy’s standards of excellence and humanitarianism continue to influence my work as a scholar and teacher though many years have passed since I was one of his graduate students. My Wagner College colleague and close friend George D. Rappaport was an extremely valuable critic and constant source of encouragement and support. William E. Nelson has earned lasting gratitude and friendship for the countless contributions he has made to my pro- fessional growth. His close reading of this manuscript and insightful comments substantially improved it. I also have benefited from the helpful comments of x Acknowledgments Herman Belz, LaWanda Cox, George M. Dennison, Kermit Hall, Stanley N. Katz, and A. Keir Nash. I am most grateful to Jane, Tom, and Paul for their love and encouragement, which nourished and consoled me through many lonely hours of this work. Abbreviations Department of Justice Records: s.c.f. “Source Chronological File” File of letters received by the Attorney General. 1790–1870 identified as Attorney General’s Papers; 1870–1884 known specifically as Source Chronological File. m699 Letters Sent by Department of Justice: General and Miscellaneous, 1818–1904 (91 volumes on 81 rolls of microfilm). m701 Letters Sent by the Department of Justice: Instructions to U.S. Attorneys and Marshals, 1867–1904 (231 volumes on 212 rolls of microfilm). m702 Letters Sent by the Department of Justice to Executive Officers and to Members of Congress, 1871–1904 (94 volumes on 91 rolls of microfilm). m703 Letters Sent by the Department of Justice to Judges and Clerks, 1874–1904 (34 volumes on 34 rolls of microfilm). Records of the Bureau of Refugees, Freedmen, and Abandoned Lands: brfal Bureau of Refugees, Freedmen, and Abandoned Lands. m742 Selected Series of Records Issued by the Commissioner of the Bureau of Refugees, Freedmen, and Abandoned Lands, 1865–1872 (7 volumes on 7 rolls of microfilm). m752 Register and Letters Received by the Commissioner of the Bureau of Refugees, Freedmen, and Abandoned Lands, 1865–1872 (33 volumes on 74 rolls of microfilm). m798 Records of the Assistant Commissioner for the State of Georgia, Bureau of Refugees, Freedmen, and Abandoned Lands, 1865–1869 (34 volumes on 36 rolls of microfilm). Introduction to the Fordham University Press Edition Thinking about why any one should be interested in reading this reissue of a book published twenty years ago brings to mind George Santayana’s admoni- tion: “Those who cannot remember the past are condemned to repeat it.” This book is being republished at a time that bears a striking resemblance to the nation’s political and constitutional history at the turn of the twentieth century. The events of the last third of the twentieth century in many ways repeated the history of the last third of the nineteenth century. The nation’s commitment to constitutional freedoms and equality generated by the Civil War climaxed dur- ing Reconstruction, but it gradually diminished from the 1870s into the twenti- eth century. This commitment surged again a century after the Civil War, in the middle of the twentieth century, peaking during the 1960s to the early 1970s. But this resurgence ended in a gradual decline that began in the 1970s and continues to the present. Contemporary values and constitutional principles of individual liberty and equality were created from the bloody experience of the Civil War, and the legal doctrines and legal processes devised to implement these principles originated in the gory aftermath of the Civil War. This introduction to the new edition will briefly recount this history as context for the contents of this book.1 The primary result of the Civil War era was the abolition of slavery and the admission of former slaves to full and equal citizenship. At the height of Reconstruction, Congress proposed and secured the ratification of three consti- tutional amendments and several statutes to implement them. The framers of this legislative program of rights guarantees believed that the first of these amendments, the Thirteenth Amendment, secured individual liberty for all Americans. The framers of the Fourteenth Amendment defined this individual liberty more precisely as the status and rights of United States citizenship. They believed citizenship rights included the generic rights to life, liberty, and prop- erty, and rights incident thereto, such as rights guaranteed in the Bill of Rights, and that these constitutional
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