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 admonition: “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...

American leaders of the 1860s and the 1870 s greatly relied upon law and legal institutions to solve some of the nation’s most important political problems. Indeed, the history of the Civil War and Reconstruction is distinguished by the way in which politics affected the development of law, and the way in which law, in turn, influenced the contours of American politics.

The most urgent political issues leading to the Civil War involved the definition of American federalism and the division of legal authority between the national and state governments over the status of slaves. The North went to war...

Between the years 1866 and 1873, a legal theory of national civil rights enforcement authority emerged in the courts of the United States that manifested a revolutionary impact of the Civil War upon the constitutional and legal structure of American federalism. The constitutional grounding of this theory was the Thirteenth and Fourteenth Amendments; its first expression was the product of judicial interpretations of the Civil Rights Act of 1866, of the concept of United States citizenship, and of the national government’s authority to fix the status and to secure the fundamental rights of American citizens.

The legal theory of national...

The first systematic effort of the United States government to secure the civil rights of American citizens was entrusted to the United States Army and the Bureau of Refugees, Freedmen, and Abandoned Lands, otherwise known as the Freedmen’s Bureau. Established in 1865, the Bureau was the first federal social welfare agency. As Southern whites’ resistance to black freedom and equality took increasingly violent and criminal forms, and as the administration of justice, criminal as well as civil, was withheld from blacks by the Southern states, the Bureau’s responsibilities increased. First by Bureau circulars and general orders, and then by direct...

Given the expansive definitions of federal power they had formulated, the federal courts were relatively inactive in enforcing the Civil Rights Act of 1866 during the last years of the 1860s. Since the conditions for which the Civil Rights Act was enacted existed in many parts of the former Confederacy, opportunities abounded in the South for the federal courts to enforce civil rights. In some places, statutes that discriminated against blacks were enforced by local judges in defiance of the Civil Rights Act. In other areas, statutes were impartial on their face, but local judges and juries acted in such...

Congress created the Department of Justice approximately one month after the enactment of the Enforcement Act of May 31, 1870. This administrative reform enlarged the attorney general’s office and centralized the legal business of the national government within it. By creating a permanent staff of attorneys, Congress expected the new executive department to handle the nation’s legal affairs more efficiently and effectively and to eliminate the need to hire outside counsel. These changes reportedly represented a savings of $1,000,000 per year. A massive problem of criminal law enforcement in certain Southern states soon confronted the enlarged and reorganized attorney general’s...

Before his appointment as attorney general, George H. Williams represented the frontier state of Oregon in the House of Representatives. As a congressman, he earned a reputation for crass partisanship rather than for judiciousness and commitment to principle one might expect of the chief legal officer of the United States. His appointment as attorney general in late 1871 thus fueled speculation that President Grant was gearing up for the forthcoming presidential election. Indeed, Grant’s biographer concluded that the change in attorneys general was a political maneuver intended to satisfy a Pacific Coast demand for cabinet representation. Further, this change encouraged...

The determination of the federal government’s civil rights enforcement policy, to a large extent, lay with the federal courts. The Justice Department would have been powerless to protect civil rights if federal judges simply had held civil rights legislation unconstitutional. At the same time, the administrative and political problems peculiar to the administration of criminal justice by the federal courts complicated the judicial resolution of these novel constitutional issues. Judges, too, had to change their understanding of their role as officers of the federal government. They not only bore the responsibility of deciding whether constitutional law permitted the United States...

The United States Supreme Court first explained its understanding of the theory and scope of the federal government’s authority to enforce civil rights in April 1873. The Court’s initial interpretation of congressional civil rights legislation occurred the previous April when it explored the scope of the Civil Rights Act of 1866 inBlyew v. United States.By 1872 and 1873, the national political balance had shifted from what it had been in 1866, and the climate was no longer favorable to civil rights enforcement. The political forces in Congress that produced the Reconstruction civil rights enactments were fragmented. Many of...

The legal impact of theSlaughter-House Caseson the constitutional history of Reconstruction was not immediately clear to contemporary observers. Indeed, its impact on federal regulatory powers was interpreted in various and sometimes contradictory ways. One legal commentator, for example, condemned the decision because he feared that it would impede efforts to regulate monopolies. At the same time, another praised it because it affirmed the nation’s authority to engage in such regulation.¹

While theSlaughter-Housedecision was generally perceived as a revitalization of states’ rights and a corresponding diminution in national authority, it left unanswered many questions relating to national...

In 1876 the United States Supreme Court finally consented to resolve the decade-long judicial struggle over the scope of national civil rights enforcement authority. In retrospect, the Supreme Court’s interpretations of the Reconstruction Amendments as guarantees of the civil rights of black Americans appear to have been predetermined by its 1873Slaughter-Housedecision and Justice Bradley’s 1874 opinion inCruikshank.Both counsels’ arguments and the Court’s 1876 decisions were predicated upon the legal assumptions of these opinions. While hindsight is almost always clearer than foresight, the states’ rights emphasis of most federal court civil rights decisions after 1873 combined with...