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

By Robert J. Kaczorowski | Go to book overview

2 The Freedmen's Bureau and
Civil Rights Enforcement,
1866–1868

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 congressional legislation, Bureau agents and army personnel were authorized to secure the personal safety and civil liberty of blacks.

Historians have concluded that the efforts of Bureau agents to protect and enforce freedmen's rights were insufficient and ineffective. Explanations of this ineffectiveness have emphasized various inadequacies and weaknesses within the administration of the Bureau and the practical context in which it functioned. The analysis that follows parallels and is partially based upon these earlier studies.1

This analysis, however, sharply differs from others in at least one important respect. It concludes that Bureau agents possessed and exercised sufficient civil legal authority to secure the civil rights and personal safety of the freedmen of the South. Bureau ineffectiveness, therefore, was not attributable to the insufficiency of national civil rights law. Rather, that inadequacy was due primarily to the virtually insurmountable practical obstacles to civil rights enforcement that confronted Bureau agents. Bureau failure, then, was due to an insufficiency of political power and failure of will, not to an insufficiency of civil legal authority.

The political and institutional context of Bureau activities reveals the hopeless conditions that impeded, if not precluded, effective civil rights enforcement. A discussion of this context is a prerequisite to an underriding of the ways in which Bureau officers understood the scope of their legal authority to enforce

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