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

By Robert J. Kaczorowski | Go to book overview
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Notes

Introduction to the Fordham University Press Edition

1. George Santayana, Reason in Common Sense, vol. l, Life of Reason or the Phases of Human Progress (New York: Charles Scribner & Sons, 2nd ed., 1936): 284.

2. This view of the framers' understanding of the Thirteenth and Fourteenth Amendments is taken from my earlier work, dating back to my doctoral dissertation in 1971, which was published in 1987. See Robert J. Kaczorowski, The Nationalization of Civil Rights: Constitutional Theory and Practice in a Racist Society, 1866–1883 (New York, 1987); ibid., “Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction,” New York University Law Review 61 (1986): 863; ibid., “To Begin the Nation Anew: Congress, Citizenship, and Civil Rights After the Civil War,” American Historical Review 92 (1987): 45; ibid., “The Enforcement Provisions of the Civil Rights Act of 1866: A Legislative History in Light of Runyon v. McCrary,” The Yale Law Journal 98 (1989): 565. There is an enormous literature on this subject. The following are representative of other interpretations: Jacobus ten Broek, Equal Justice Under Law (New York, 1965); Charles Fairman, Reconstruction and Reunion, 1864–88, Part One (New York, 1971); Harold M. Hyman, A More Perfect Union: The Impact of the Civil War and Reconstruction on the Constitution (New York, 1973); Michael Les Benedict, A Compromise of Principle: Congressional Republicans and Reconstruction, 1863–1869 (New York, 1974); Herman Belz, Emancipation and Equal Rights: Politics and Constitutionalism in the Civil War Era (New York, 1978); Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment (Cambridge, 1977); Michael Kent Curtis, No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights (Durham, NC, 1986); William E. Nelson, The Fourteenth Amendment: From Political Principle to Judicial Doctrine (Cambridge, 1988); Earl M. Maltz, Civil Rights, The Constitution, and Congress, 1863–1869 (Lawrence, KS: University Press of Kansas, 1990); Akhil R. Amar, The Bill of Rights: Creation and Reconstruction (New Haven, CT, 1998); Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens, GA, 1997). The most comprehensive and best general history of Reconstruction, which includes informative treatment of its constitutional dimensions, is Eric Foner, Reconstruction: America's Unfinished Revolution, 1863–1877 (New York, 1988).

3. Ch. 114,14 Stat. 27 (1866).

4. Allen W. Trelease, White Terror: The Ku Klux Klan Conspiracy and Southern Reconstruction (New York, 1971).

5. Ch. 114,16 Stat. 140 (1870); Ch. 22,17 Stat. 13 (1871).

6. William Gillette and Xi Wang attribute the failure of rights enforcement to the logistical, financial, and human deficiencies recounted in this book. William Gillette, Retreat From Reconstruction, 1869–1879 (Baton Rouge, LA, 1979); Xi Wang, The Trial of Democracy: Black Suffrage and Northern Republicans, 1860–1910 (Athens, GA, 1997). for

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