This essay analyzes the Supreme Court’s ruling in The Civil Rights Cases (1883) and surveys both contemporary and scholarly responses to it. Citizenship should mean something, and the Court’s ruling in The Civil Rights Cases invalidated much of the Civil Rights Act of 1875, the most ambitious and progressive civil rights legislation that Congress enacted prior to 1964. When the Supreme Court issued its decision in Dred Scott, Abraham Lincoln warned of a sequel that would nationalize slavery. While the Thirteenth Amendment eliminated the possibility of such a decision, Dred Scott is widely recognized as one of the Court’s worst decisions and is firmly within the constitutional anti-canon. Although the majority’s decision in The Civil Rights Cases was initially compared to Dred Scott, historians of the Reconstruction Era have often dismissed the significance of the decision and legal scholars have not found the majority’s opinion to be erroneous. The essay argues that The Civil Rights Cases is one of the most consequential decisions in the Court’s history because of the gap in federal civil rights protections it created and the narrow scope it accorded congressional authority to enforce the Reconstruction Amendments. Although northern states responded to the decision by passing public accommodations laws, the deleterious legacy of the majority’s ruling in The Civil Rights Cases endures to this day. While not the exact sequel to Dred Scott that Lincoln warned of, the Civil Rights Cases had a more significant and lasting impact on African American citizenship and civil rights, and it clearly belongs with Dred Scott in the anti-canon.
Matthew Norman, Christopher Bryant, Why Civil Rights Cases Belong in the Anti-canon: Black Citizenship, the Fourteenth Amendment, and Judicial Interposition, 12 ConLawNOW 191 (2021).