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Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction

The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866 remain among the most controversial issues in American constitutional law. Professor Kaczorowski contends that the issues have generated more controversy than they warrant , in part because scholars analyzing the legislative history of the amendment and statute have approached their task with preconceptions reflecting twentieth century legal concerns. He argues that the most important question for the framers was whether national or state governments possessed primary authority to determine and secure the status and rights of American citizens. Relying on records of the congressional debates as well as letters, newspaper clippings, and other contemporaneous evidence of the views of congressmen, federal judges, and federal attorneys, Professor Kaczorowski describes a Republican consensus that such power must ultimately lie in the national government He concludes that this Republican commitment to the primacy of national citizenship helps explain why racist politicians, with the support of racist constituents, worked to ensure legal protection for the civil rights of blacks. INTRODUCTION The Civil War and Reconstruction era witnessed a heroic effort by federal judges and legal officers in the South to protect the civil rights of American citizens.' This effort was successful in diminishing, if not eliminating , the use of terrorism and violence as political weapons. Federal prosecutions of civil rights violators decimated the Ku Klux Klan and brought a period of relative peace to Southern life. Klansmen were prosecuted in their individual capacities for violating citizens' Bill of Rights guarantees and for acts such as murder and assault that would normally be punished under state criminal codes. These prosecutions were brought under Reconstruction civil rights statutes 2 enacted to implement the thirteenth 3 and fourteenth 4 amendments, and federal judges uniformly upheld the constitutionality of these prosecutions. A striking feature of this extraordinary story is the uniformity with which federal judges and legal officers interpreted the scope and meaning of the thirteenth and fourteenth amendments. Judges' and federal attorneys' interpretations of these amendments and the Civil Rights Act of 18661 were not only uniform among themselves; they also conformed to interpretations expressed by Republican congressmen and senators in the congressional debates leading to the adoption of the amendments and the Act. What emerges from this congressional, administrative, and judicial record is a commonly shared theory of national civil rights enforcement authority under the thirteenth and fourteenth amendments. I …