I thought I would distribute a link to a new paper I co-wrote for the Brennan Center for Justice, which is called "A New Birth of Freedom: The Forgotten History of the 13th, 14th and 15th Amendments" http://www.brennancenter.org/resources/ji/ji5.pdf
The overall theme is that the present court is using judicial review to attack a range of federal civil rights laws and are replicating the history fromt he 19th century when the courts killed Reconstruction. Here is an excerpt:
HOW THE KLAN AND THE COURT KILLED RECONSTRUCTION
The Civil Rights Act of 1875 was the high-water mark of Reconstruction legislation. In less than two years, Reconstruction would be over and white supremacy would be firmly entrenched in the South for almost another century.
The ultimate bulwark of white supremacy was violence. A vigorous federal response had beaten back murder and terrorism before the 1872 election, but by the 1874 and 1876 elections, scores of blacks and allied white Republicans lay dead as anti-civil-rights Democrats returned to power throughout the South. Federal prosecutions dropped off sharply, and the cases that were brought became harder to win because of interference from southern officials and private individuals. State governments systematically harassed and arrested federal witnesses to deter their participation, even convicting them of perjury for testimony given at federal trials. Federal witnesses were murdered quite regularly. The bloodbath climaxed with the disputed presidential election of 1876, with most southern states reporting two sets of results. The dispute was resolved by Republicans' agreement to end Reconstruction.
What had turned federal prosecutors' optimism of 1872 into their surrender of 1876? The severe depression beginning in 1873 bears some blame for shifting federal attention away from racial violence. However, continuing indictments by the Justice Department and passage of the Civil Rights Act of 1875 show that many national Republicans were still committed to civil rights. Their commitment was finally destroyed by the Supreme Court's determined opposition to equality. When the Court overturned Reconstruction statutes and allowed terrorists to go free, it not only hamstrung the federal government but also signaled that anyone fighting for civil rights in the South would die. Denied any realistic hope of contesting elections in the South, the Republican Party gave up on Reconstruction.
THE SUPREME COURT'S CAMPAIGN AGAINST CIVIL RIGHTS
The Supreme Court manifested its opposition to Reconstruction as early as a pair of 1866 decisions removing professional restrictions on ex-Confederates.24 But the lasting damage started in the 1870s and continued through the early 20th century, as the Court eviscerated both aspects of the New Birth Amendments: it refused to enforce the amendments' self-executing aspects to protect civil rights (though it increasingly deployed them to invalidate federal and state regulation of business); and it struck down legislation passed under the amendments' enforcement clauses.
Nothing was more critical to the enforcement of civil rights than the ability of federal courts to take jurisdiction when racist state courts failed to protect blacks. The Supreme Court struck its first major blow against that principle in 1872. In the Rhodes case six years earlier, Justice Swayne had upheld the provision of the Civil Rights Act of 1866 that permitted removal of civil and criminal cases from state courts that did not permit blacks to sue and testify on the same terms as whites. In the new case before the full Court, the same discriminatory Kentucky statute that had been at issue in Rhodes was invoked to bar two black witnesses from testifying against two white men charged with killing a blind and elderly black woman. The Court's majority held that the removal provision did not apply: the witnesses had no rights at stake, and the victim's rights were not at issue because she was dead. Justice Bradley's dissent (joined, not surprisingly, by Swayne) noted that the Court's construction put "a premium on murder": a minor assault would trigger the statute, but federal jurisdiction would "cease when death is the result." While not a constitutional ruling, this macabre statutory interpretation foreshadowed the coming assault on the New Birth Amendments themselves.
The next and more well-known step in the campaign against civil rights was an odd decision known as the Slaughter-House Cases - odd because it dealt not with blacks' civil rights but with white butchers' economic rights. New Orleans had granted a monopoly to a privately owned slaughterhouse. The city's butchers claimed that this abridged their privileges and immunities as United States citizens, violating § 1 of the 14th Amendment. The Court held that the government-imposed monopoly did not violate any protected privileges or immunities, and it could have stopped there. However, the majority also declared that the Privileges and Immunities Clause did not require the states to respect the Bill of Rights, disregarding the New Birth Framers' explicit intention to overrule Barron v. Baltimore.
As Judge McConnell argued before ascending to the federal bench, Slaughter- House radically repudiated Reconstruction, replacing the New Birth Framers' vision with a "southern, Democratic theory of states' rights." The decision reflected the background of the justices in the majority, who were either proslavery Democrats or conservative Republicans from the party's pro-business wing. At one swipe, these justices destroyed much of the 14th Amendment's self-executing force. Members of Congress who had adopted the amendment condemned the Court's interpretation of their work as a rank betrayal. Swayne, again among the dissenters, agreed with them. The decision "defeats . . . the intention of those by whom the instrument was framed and of those by whom it was adopted." Nor should the extent of the damage be underestimated; the Court "turns, as it were, what was meant for bread into a stone."
Formally, Slaughter-House dealt only with whether courts would enforce the Bill of Rights against state governments in the absence of congressional legislation. But the decision clearly hinted that the Court would be hostile to Reconstruction statutes when they came before the justices. If, as the dissenters claimed, § 1 required the states to obey the Bill of Rights, then § 5 would "bring within the power of Congress the entire domain of civil rights," a proposition the majority found absurd.29 Swayne's closing words are chilling in the light of subsequent history: "I earnestly hope that the consequences to follow may prove less serious and far-reaching than the minority fear they will be."30 Swayne was tragically prescient. When political violence erupted again in 1873 and the Justice Department began bringing new indictments, federal judges read the Slaughter-House tea leaves and ruled that they had no jurisdiction. Several judges held civil rights statutes unconstitutional. In response, the government suspended civil rights enforcement until the Supreme Court could rule on the constitutionality of the Enforcement Acts. The violence of 1873 included the Colfax Massacre, and, as previously noted, the 1874 elections - held during the federal government's enforcement hiatus - returned racist governments to several southern states. The suspense, such as it was, came to an end with two 1875 decisions that finished off the New Birth Amendments, at least as their framers had envisioned them.
The first case, United States v. Reese, stemmed from the 1873 election in Kentucky, when riots and lynchings swept the state to discourage black voting. Using a variety of methods, from residency requirements to literacy tests to poll taxes, whites took two-thirds of black voters off the rolls. A federal grand jury indicted scores of officials for their refusal to accept the poll tax from black voters. The Court declared that the "Fifteenth Amendment does not confer the right of suffrage upon any one." The Enforcement Acts had made it a crime for officials to "wrongfully refuse" ballots, a rule which the Court said Congress had no power to enact under the 15th Amendment. Again, the technical holding was less important than the practical effect. Reese theoretically left Congress free to fix the defective statutory language, but by leaving black voters without protection in 1876, the Court ensured that no Congress willing to do so would be elected for more than 90 years.
If Reese gave public officials the green light to disfranchise blacks, Cruikshank gave private individuals a similar carte blanche to augment official discrimination with private violence. More than one hundred people were slaughtered in Colfax defending their right to vote, yet the Supreme Court declared in Cruikshank that their murderers were beyond the reach of federal law. The Klan and similar groups were now free to overthrow Reconstruction governments with impunity. Since the 14th Amendment "adds nothing to the rights of one citizen as against another," there could never be a federal civil rights violation when private individuals conspired to deny civil rights.
The Supreme Court, which had so assiduously protected the rights of slaveholders before the Civil War, would not allow Congress to protect the lives of former slaves afterwards. Before the war, the Court had upheld federal prosecution of private individuals who interfered with the capture of runaway slaves. Now, it struck down an analogous remedy against individuals who interfered with former slaves' attempt to cast meaningful votes. Senators who had written the Enforcement Laws denounced the Court's decision, but in vain. Senator Oliver Morton had to concede that the 14th and 15th Amendments had been "almost destroyed by construction." Congress was powerless to combat racist violence. Years later, W.E.B. DuBois described the Court's decisions in terms that could have come from conservative critics of "liberal judicial activist" decisions of the Warren Court. Reconstruction's enemies "relied upon the court to do what Democratic members of Congress had failed to accomplish - and the Court, through a process of reasoning very similar to that of Democratic legislators, deprived the enforcement legislation of nearly all its strength when it rendered its decisions in the cases of United States v. Reese and United States v. Cruikshank."
With civil rights enforcement all but shut down from 1873 onwards, Reconstruction governments were driven from office throughout the South. Violence destroyed the Republican Party in Mississippi. Taking advantage of the void, Democrats recaptured the legislature and impeached the Republican governor and lieutenant governor, driving them from office by force of arms. Similar violence would "redeem" every state in the region, to use the term adopted by white supremacists. In 1876, Confederate General Matthew Butler led a white mob to murder an opposing black militia defending the South Carolina government - and was then elected to the United States Senate by the new, "redeemed" legislature. The effects on the federal government were almost as dramatic, as pro-civil-rights Republican representatives and senators were replaced by anti-civil-rights Democrats - sufficient in number, as their successors proved in the mid-twentieth century, to filibuster meaningful civil rights legislation, even when a majority of the country supported it.
The final blow to Reconstruction was the presidential election of 1876. With the black vote suppressed throughout the South, Democrat Samuel Tilden won a majority among those allowed to vote. A commission, including five justices of the Supreme Court, was appointed to resolve the ensuing dispute over the electoral college vote. The political parties cut a deal: Republican Rutherford B. Hayes would become President in exchange for the end of Reconstruction. Hayes ensured that federal troops would not return to the South to enforce civil rights by signing the Posse Comitatus Act, banning the military from "execut[ing] the laws." Barely two decades had passed since the Attorney General had authorized the military to "execute" the Fugitive Slave Act. Recognizing that the Supreme Court had made contesting elections in the South impossible, northern Republicans essentially conceded the end of the New Birth of Freedom. Murder and disfranchisement would be the fate of blacks fighting for civil rights in the South for the next ninety years.
This did not mean that the Republican Party renounced the use of federal power in general, or even of military power for domestic law enforcement. Rather, control of federal power shifted from pro-civil-rights Radical Republicans to the party's pro-business faction. Within three months of the end of Reconstruction, federal troops were deployed to break the Great Strike of 1877. The federal government built armories in the North to ensure that troops would be available for future labor conflicts. Former President Grant acidly remarked that many Republicans had resisted using federal troops "to protect the lives of negroes. Now, however, there is no hesitation about exhausting the whole power of the government to suppress a strike on the slightest intimation that danger threatens."
As for the courts, they did find a use for the self-executing aspect of the New Birth Amendments: during the ensuing "Lochner era," federal courts regularly struck down laws regulating subjects like labor relations and food packaging on the grounds that they violated the 14th Amendment's Due Process Clause (Lochner itself invalidated a New York statute prohibiting bakery employees from working more than 60 hours per week).34 As historian Eric Foner observed, "The federal courts . . . retained the greatly expanded jurisdiction born of Reconstruction; they increasingly employed it, however, to protect corporations from local regulation." Amendments meant to give birth to freedom brought forth Lochner instead.