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Civil Rights in the Shadow of SlaveryThe Constitution, Common Law, and the Civil Rights Act of 1866$
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George A. Rutherglen

Print publication date: 2012

Print ISBN-13: 9780199739707

Published to Oxford Scholarship Online: January 2013

DOI: 10.1093/acprof:oso/9780199739707.001.0001

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Restrictive Interpretations and the End of Reconstruction

Restrictive Interpretations and the End of Reconstruction

(p.93) 5 Restrictive Interpretations and the End of Reconstruction
Civil Rights in the Shadow of Slavery

George Rutherglen

Oxford University Press

The 1866 Act received restrictive interpretations even during Reconstruction, as did the Reconstruction amendments and other civil rights legislation. The Slaughter-House Cases, narrowly interpreting the Privileges or Immunities Clause of the Fourteenth Amendment, were emblematic of this tendency, which accelerated with the end of Reconstruction. These developments culminated in the Civil Rights Cases, which invalidated the public accommodations provisions of the Civil Rights Act of 1875. Nevertheless, even the Civil Rights Cases recognized the power of Congress to legislate against the “badges and incidents of slavery” in enforcing the Thirteenth Amendment. The restrictive developments were driven as much by concerns about preserving the balance of state and federal power, inherited from antebellum law, as they were by a waning political commitment to Reconstruction. The surviving civil rights laws, like the 1866 Act, represented an incomplete experiment in achieving equality in public life—one that was neither wholly repudiated nor effectively pursued when Reconstruction was abandoned. It had to await the Civil Rights Era before it was revived.

Keywords:   slaughter-house cases, civil rights cases, federalism, reconstruction, badges and incidents of slavery

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