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.