THE CIVIL RIGHTS CASES
The Civil Rights Cases involved a constitutional challenge to the Civil Rights Act of 1875. The Civil Rights Act was a reconstruction-era federal law that was primarily aimed at securing the civil rights of newly emancipated Black US citizens.
It did so by prohibiting race discrimination in access to ‘accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement’.[17] Further, it penalised individuals who acted in contravention of this prohibition.[18]The Civil Rights Act of 1875 was enacted to implement the promise of the Thirteenth and Fourteenth Amendments to the US Constitution, framed in the aftermath of the US Civil War and the dismantling of slavery. The Thirteenth Amendment proscribed slavery and involuntary servitude, while the Fourteenth Amendment stated - in the relevant part - that ‘[No] State [shall] deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of laws’.[19] In defence of the law, it was argued that the Civil Rights Act was enacted under the authority of both these Amendments. The challengers contended, however, that the Thirteenth Amendment was simply inapplicable to straightforward racial discrimination that did not amount to slavery. As for the Fourteenth Amendment, they contended that it was directed only against the state. It did not authorise the federal Congress to regulate private conduct - ie to ‘adjust... the social rights of men and races in the community’.[20]
It is important to clarify here that a primary issue in the Civil Rights Cases was about the reach of federal power, arising out of the specific relationship between the national government and the state governments in the USA.
The challengers did not raise - and the Supreme Court did not consider - the question of whether government in general possessed the power to enact a statute such as the Civil Rights Act and legislatively intervene in the ‘private sphere’ (although successful challenges of that nature become commonplace a few decades later, in the Lochner era[21]). The issue, rather, was whether the national Congress doing so was consistent with the federal division of powers.In order to answer the federal question, however, the Supreme Court had to first answer the (separate) question of whether the Fourteenth Amendment covered private conduct or not. This is because, according to Section 5 of that Amendment, the federal Congress had been granted the power to ‘enforce, by appropriate legislation, the provisions of this article’.[22] Consequently, if the guarantee of equal protection of laws applied to private conduct, there could be no doubt that the federal Congress was empowered to pass the Civil Rights Act.
Therefore, in my analysis of the Civil Rights Cases, I will confine myself to the Court’s consideration of this preliminary question, crucial to the constitution of the public/private divide. For the reasons that I have provided above, I believe that this part of the Court’s reasoning is cleanly separable from its consideration of the federal question (which I propose to bracket for the purposes of the present argument).
The Supreme Court agreed with the challengers, and struck down the Act by an 8-1 majority. The majority chose to interpret the Thirteenth Amendment narrowly, observing that there existed ‘distinct notions of what... [slavery] was and what were its necessary incidents’.[23] These included compulsory restraints on movement, prohibitions upon contracting, holding property, testifying in court and so on. In other words, according to the Supreme Court, slavery was a condition of legal subordination, marked by a set of formal and legal prohibitions and disabilities.
The Thirteenth Amendment, which applied against private parties, therefore only empowered the federal Congress to ‘declare and vindicate those fundamental rights which appertain to the essence of citizenship’.[24] In the opinion of the Court, however, the Civil Rights Act went much beyond that, (impermissibly) seeking to adjust ‘social rights’.[25]Consequently, even though the Thirteenth Amendment did depart from the default vertical approach by applying inter se between private parties, the Supreme Court chose to interpret it narrowly, thus depriving it of much of the force that it might have had. This interpretive approach makes sense as long as we think of the default vertical approach as ‘default’, and horizontality as an exception that must be strictly construed.
Justice Harlan dissented. I shall take up his dissent in greater detail in chapter five. Here, it is sufficient to flag an important element of his reasoning. ‘Slavery’, he observed, ‘was the moving or principal cause of the adoption of [the Thirteenth] amendment, and. that institution rested wholly upon the inferiority, as a race, of those held in bondage’ (emphasis added).[26] Consequently, by protecting the legal rights of the newly emancipated Black people from discriminatory conduct - rights that were ordinarily available and exercised by all other ‘freemen’ - the Civil Rights Act was only removing the ‘burdens which lay at the very foundation of the institution of slavery as it once existed’ (emphasis added).[27]
Justice Harlan took what we may call an ‘institutional view’ of constitutional rights. While the majority was correct in identifying certain specific prohibitions and disabilities that characterised slavery, Justice Harlan did not limit himself to that. He recognised that what gave these specific formal features their force was that they were part of the institution of slavery, which, in turn, was based on certain foundational practices.
These practices could be reflected in more ways than just through the list of legal prohibitions and disabilities that the majority judgment recognised. Consequently, the reach of the Thirteenth Amendment would extend to all the concrete manifestations of the institution of slavery - including, naturally, the denial of civil rights.This institutional model of horizontality is what I shall develop further in chapter five, but I depart from it now. What of the Fourteenth Amendment? Here, the majority held that
it is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject matter of the amendment... until some State law has been passed, or some State action through its officers or agents has been taken, adverse to the rights of citizens sought to be protected by the Fourteenth Amendment, no legislation of the United States under said amendment, nor any proceeding under such legislation, can be called into activity, (emphasis added)[28]
Building upon, and taking forward, existing contemporary precedent,[29] the Civil Rights Cases marked the beginnings of the well-known ‘state action doctrine’, which continues to this day. It was accompanied, as well, by the origin of the public/private divide in constitutionalism, which took the form of a separation between ‘state action’ and ‘individual invasion’ of rights. The majority located this analysis in the text of the Fourteenth Amendment, noting that because the Fourteenth Amendment ‘prohibits the State from denying to any person the equal protection of laws’(emphasis added),[30] a ‘law... without any reference to adverse State legislation’[31] would not fall within its protective scope.
As Frank Michelman points out, however, this is not a conclusion that is necessarily dictated by the text of the Fourteenth Amendment. Reading the relevant words of the Fourteenth Amendment - ‘No state shall... deprive any person or life, liberty, or property without due process of law’[32] - Michelman notes that:
It is child’s play to explain how the state, as the sovereign source of the common law, is responsible for every failure of the common law to provide relief against one or another exercise of power by one member of society against another.[33]
And if the state is responsible for that failure, it must be held to account for it.
This, of course, forms the basis of what we today recognise as the familiar concept of positive rights and positive duties, and one that has strong support in international and comparative law, as well as in scholarly literature.[34] Indeed, Justice Bradley - who authored the majority opinion in the Civil Rights Cases - had himself hinted at such an understanding of the Fourteenth Amendment in a prior judgment, before resiling from it in favour of the state action doctrine.[35] Michelman therefore argues that the basis of the state action doctrine is not conceptual, but ‘a normative political theory that our judges attribute to the Constitution’.[36] In the next three sections, I will attempt to excavate the fundamentals of that ‘normative political theory’.III.