The Supreme Court and the History of Reconstruction—And Vice-Versa

By: Eric Foner


Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and the subsequent retreat from Reconstruction. These historians also praised the decisions of the Supreme Court that offered narrow interpretations of Congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments.

Modern historians reject the works of early historians of Reconstruction as incomplete, unbalanced, and often racist. Beginning with W.E.B. Du Bois in the 1930s, revisionist historians have reexamined the Reconstruction Era and developed a narrative that praises the Republicans who sought to protect the rights of freed slaves and the freed slaves themselves, who fought for civil and political rights during Reconstruction and its aftermath. Unfortunately, the legal profession and the courts have been slow to embrace the revolution in Reconstruction historiography.

This Essay argues that a historical narrative of Reconstruction repudiated by historians continues to exert an outsized influence on Supreme Court jurisprudence, and that judicial unwillingness to overturn flawed Reconstruction-era precedents hinders the cause of equality before the law even today. It suggests that the overdue judicial repudiation of precedents resting, in part, on a faulty interpretation of Reconstruction’s history would have a salutary effect on the Supreme Court’s Thirteenth and Fourteenth Amendment jurisprudence.


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