The Selective Strength of Federal Power Under the Constitution: Slavery, Freedom, and the Civil Rights Cases

Abstract

This thesis argues that the Civil Rights Cases (1883) misconstrued the enforcement powers created by the Thirteenth and Fourteenth Amendments. Drawing on Justice Harlan’s dissent, it challenges the prevailing view that Reconstruction expanded federal enforcement power. Reconstruction did not invent federal responsibility for rights protection but instead redirected an existing enforcement logic previously used for slaveholders under the Founders’ constitutional framework, toward securing freedom and equal citizenship. What was transformative was the subject of political protections. Properly understood, under the Thirteenth Amendment, Congress may legislate against badges and incidents of slavery. This includes discrimination based on previous conditions of servitude or suspicion of being a member of a previously enslaved class, in private businesses of public accommodation. Under § 5 of the Fourteenth Amendment, Congress possesses enforcement power and interpretive discretion to identify the Privileges or Immunities of national citizenship, even where discrimination is carried out by private actors. The thesis concludes that the Civil Rights Act of 1875 was constitutional and that the Court’s state-action doctrine parted from the Constitution's original structure of federal enforcement. The Court continues to rely on the logic of the Civil Rights Cases to constrain the Fourteenth Amendment, most notably in the case of City of Boerne v. Flores (1997).