The Court and Civil Rights
The Abandonment of the Freedmen • The Civil Rights Cases •
Jim Crow Enthroned • The Treatment of Native Americans •
The Chinese Cases • The Insular Cases • The Incorporation
Theory • Women and the Law • The Court Draws Limits •
The Peonage Cases • A Few Small Steps • Conclusion • For
FREEDOM HAD BEEN the driving force of American law in the first half of the nineteenth century, leading up to the fight to end slavery and the Civil War. However, the meaning of that freedom was often contested. For Southern whites, for example, “freedom” implied the right to own slaves; for African Americans and their white allies, freedom meant an end to bondage. After that great outpouring of energy and creativity to end slavery, the latter decades of the century marked a withdrawal, a time of consolidation rather than advance, and in some areas retreat. The Republican Congresses of the war and Reconstruction era had attempted to write some statutory as well as constitutional safeguards to protect the former slaves, but the Supreme Court nullified nearly all this work. The greatest impact of the Civil Rights Acts and the Fourteenth and Fifteenth Amendments would come nearly a century later in the civil rights struggles of the 1960s.
The Court also seemingly had little interest in expanding the protection of constitutional safeguards over other minorities as well, and in general acquiesced in congressional and presidential initiatives as well as state laws discriminating against Native Americans, Asians, and peoples living in the territories won in the Spanish-American War, as well as against Mormons. After some mid-century reforms, women found little that could be considered hopeful after the war. The suffrage drive had been shunted aside to focus all available energy on abolition and the drive for racial equality, and the effort to secure the vote would not be successfully revivified until the early twentieth century. Both at the state level and in the Supreme Court, judges interpreted the law to reflect the dominant social view that women had few rights and ought to be kept confined in their proper domestic sphere.
The few hopeful signs could be found only when bigotry pushed too far, but even then, the Court reacted slowly and cautiously. In terms of legal and constitutional agen-