The Civil Rights Cases

My next project will be on the relationship between political partisanship and constitutional legitimacy, which builds on ideas that I’ve discussed in prior posts.  I’ll talk about this more in future posts, but let me throw out one nugget now.

The Civil Rights Act of 1875, which was the most sweeping civil rights statute passed until 1964, was struck down by the Supreme Court in 1883. One fact about the law I’ve just started to focus on was that it was passed by a lame-duck Congress after an election where Democrats won control of the next House of Representatives. The enactment of a major statute under like circumstances today would be extremely controversial.  (Imagine if Democrats had passed the Affordable Care Act in December 2010).  One wonders whether the Court’s determination on constitutionality was influence by the hurried passage of the law before a partisan turnover.


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5 Responses

  1. Sam Bagenstos says:

    That is a point I always highlight when I teach the case. But of course it’s not just that it was a lame-duck Congress, but that the 1874 election marked the end-of-Reconstruction shift of American politics that was confirmed by the presidential election two years later. (The length of time a lame-duck Congress sat in those days is pretty startling to my students, BTW.)

  2. Ken Rhodes says:

    Perhaps “one wonders” about such political back-stories.

    OTOH, one can read the Constitution and the Court’s opinion written by the Honorable Justice Bradley and find nary a word about how the law was passed at the last minute. I red both those documents this morning, just to see if I could find even the faintest hint of a suggestion that the powers of a “lame duck” Congress are somehow diminished. No, not a hint.

    I red every word of the opinion by Bradley slowly and carefully. I found it to be well crafted and quite specific in its references regarding what types of laws Congress could pass in furtherance of the Thirteenth and Fourteenth, and what types of laws were out of bounds. And I note that the SCOTUS vote was 8-1. It appears to me that, whatever the motivations of the outgoing Congress to “beat the final bell,” the Supremes decided the case on the fine points of the Constitution as it was understood at the time.

    And I can’t imagine how outrageous it would be for SCOTUS to overturn a law, duly passed by Congress and signed into law by the President, simply because the terms of the Congress and/or the President were rapidly drawing to a close. What Constitutional argument would be written into THAT opinion?

  3. Joe says:

    Isn’t November when the comment experiment is supposed to be ongoing?

  4. Howard Wasserman says:

    Not precisely the same issue, but check out this from James Pope, discussing Cruikshank.

  5. John Dereszewski says:

    This was actually a very active lame duck session. In addition to the civil rights act, Congress passed the 1875 Judiciary Act at that time. This provided Federal Question jurisdiction to the US Courts for – except for the stillborn 1801 Judiciary Act – the first time. This greatly contributed to the explosion in the court’s caseload that quickly ensued.

    Like the civil rights act, the judiciary act represented an attempt on the part of the GOP to keep its policies in place, through the workings of a GOP dominated judiciary, during a time of possible political eclipse.

    Since all of the members of the 1883 court had been appointed by Republican Presidents – and eight of them were card carrying Republicans – I doubt if the timing of the law’s enactment made much of a difference. Right or wrong, the court struck down the civil rights act strickly on, at least as they viewed it, the merits.

    One final point. To what extent was the original lame duck set up seen to be a problem in 1875 – and when did it start to be viewed as a significant institutional weakness? It would be interesting to see the extent to which the Democratic opponents to the two major bills based their arguments on the timing of the actions – and the extent to which they did not see this to be an especially significant factor. After all, many very significant actions – including the passage of the 13th Amendment and the resolution of two contested Presidential elections – had already occurred during lame duck sessions. So perhaps this was not considered to be a very different situation – or perhaps not.

    Hope you find these comments interesting.