Rethinking the Judicial Settlement of Reconstruction

Pamela Brandwein unveils a lost jurisprudence of rights and redefines the legal transition to Jim Crow.

Pamela Brandwein (Author)

9781107625914, Cambridge University Press

Paperback / softback, published 6 March 2014

282 pages
23.4 x 15.6 x 1.6 cm, 0.44 kg

“This is the best law and politics treatment of the Reconstruction era and its long and dramatic aftermath that has ever been written. Brandwein’s monumental achievement rests on a subtle application and revision of how political scientists think about the role of the Supreme Court in politics. It also offers a model of how to do legal history, based on meticulous and deep primary research and a sustained effort to think about how judges and justices applied the Civil War Amendments and their enforcement statutes. Brandwein takes us deeper into the conceptual and legal world of the Reconstruction and post-Reconstruction rights revolution than anyone has ever taken us — and she thereby forces us to rethink the development of civil and voting rights law in the 20th century. Remarkably, the Reconstruction and post-Reconstruction rights revolution collapsed and disappeared, leaving few conceptual legacies; our contemporary voting and civil rights jurisprudence is fundamentally different. This brilliant study will change how we think about American political and constitutional development.”
—Rick Valelly, Swarthmore College

American constitutional lawyers and legal historians routinely assert that the Supreme Court's state action doctrine halted Reconstruction in its tracks. But it didn't. Rethinking the Judicial Settlement of Reconstruction demolishes the conventional wisdom - and puts a constructive alternative in its place. Pamela Brandwein unveils a lost jurisprudence of rights that provided expansive possibilities for protecting blacks' physical safety and electoral participation, even as it left public accommodation rights undefended. She shows that the Supreme Court supported a Republican coalition and left open ample room for executive and legislative action. Blacks were abandoned, but by the president and Congress, not the Court. Brandwein unites close legal reading of judicial opinions (some hitherto unknown), sustained historical work, the study of political institutions, and the sociology of knowledge. This book explodes tired old debates and will provoke new ones.

1. Introduction
2. The emergence of the concept of state neglect, 1867–73
3. The civil/social distinction: an intramural Republican debate
4. The birth of state action doctrine, 1874–6
5. A surviving sectional context, 1876–91
6. The Civil Rights Cases and the language of state neglect
7. Definitive judicial abandonment and residual expressions, 1896–1909
8. A loss of context: the rise of distorted knowledge about state action doctrine
9. Conclusion.

Subject Areas: Law [L], Politics & government [JP], 20th century history: c 1900 to c 2000 [HBLW], History of the Americas [HBJK]