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

By Robert J. Kaczorowski | Go to book overview

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 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 climaxed during Reconstruction, but it gradually diminished from the 1870s into the twentieth 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 constitutional 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 property, and rights incident thereto, such as rights guaranteed in the Bill of Rights, and that these constitutional guarantees delegated to Congress plenary power to secure and enforce them. The Fourteenth Amendment also guaranteed to each inhabitant of the United States due process of law and the equal protection of

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