I think Nathan is oddly underestimating the role of politics. The post-war Court did a shabby (though not 100% awful) job with the Reconstruction laws, but it was the political change in the 1876 election, where Hayes traded black rights for electoral votes -- that ended Recobstruction. Though the S.Ct played a minor sideways role in that with Justice Daniel Davies (an old Lincoln crony) agreeing to be booted upstairs to (I think) the Senate that allowed the dirty deal to be done.
Point: if Tilden had won, or if the Executive or even Congress had cared to stand and fight, the S.Ct would not have been able to stop Reconstruction. Bear in mind that the power of judicial review has barely tested, had been asserted only once before the war -- in Dred Scot v. Sanford! -- and might have been stripped from an obstreperous Court by Congress. Just for starters. jks
--- Nathan Newman <nathanne at nathannewman.org> wrote:
>
> ----- Original Message -----
> From: "Charles Brown" <cbrown at michiganlegal.org>
>
> -Seems to me the level of open terrorist rule in
> post-Reconstruction US is
> as
> -much or more as in Fascist Italy, and there should
> be a revision of
> history
> -by which the US is declared fascist in this period.
>
> I'm not sure what is gained by using a term that is
> poorly defined in the
> modern era. At the federal level, it's not really
> accurate, since the
> Klan-based terror was in opposition to federal
> power. As for the state
> governments, why not just call them
> "terrorist-backed states." It has a
> hell of a lot more resonance in modern vocabularies.
>
> -- Nathan Newman
>
> ----- Original Message -----
> From: "Yoshie Furuhashi" <furuhashi.1 at osu.edu
>
<http://mailman.lbo-talk.org/mailman/listinfo/lbo-talk>
> >
>
>
> Nathan wrote:
> >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 from the 19th century when the courts
> killed
> >Reconstruction.
>
> -Nathan, you draw a wrong lesson from your own
> paper, if you focus
> -your fire on courts and judicial review. As you
> write yourself, "The
> -ultimate bulwark of white supremacy was _violence_"
> (emphasis added,
> -Nathan Newman and J. J. Gass, "A New Birth of
> Freedom: The Forgotten
> -History of the 13th, 14th, and 15th Amendments,"
> 2004,
>
-<http://www.brennancenter.org/resources/ji/ji5.pdf>,
> p. 16), and what
> -sealed the fate of Blacks was that "control of
> federal power shifted
> -from pro-civil-rights Radical Republicans to _the
> party's
> -pro-business faction_" (emphasis added, p. 19):
>
> But what allowed the violence to go unpunished?
> Federal law made Klan
> violence illegal after the Civil War and was
> actually quite successful in
> rooting it out during President Grant's first term--
> 1869-1873. The 1872
> election was conducted with relatively little
> violence and blacks voted in
> mass numbers and were elected to office across the
> South.
>
> So what changed? As the paper documents, what
> changed was that the US
> Supreme Court struck down the Reconstruction
> Enforcement laws as
> unconstitutional. In Colfax, Louisiana in 1873, 100
> blacks were murdered
> as they defended their right to vote. The Supreme
> Court declared that the
> ringleaders for this violence could not be
> prosecuted under federal law.
> This meant that white supremacists could launch
> terrorist murder across the
> South and the federal government could do nothing to
> stop it.
>
> So by 1874 and 1876, blacks were largely no longer
> able to vote except in
> smaller numbers due to that violence, so Democrats
> first took over the
> Congress and then got more votes for the Presidency.
> It was only at that
> point that the pro-business Republicans could argue
> that a civil rights
> agenda was hopeless, they no longer had a base in
> the South, so new
> political calculations had to be made. (And
> remember, pro-civil rights
> Republicans would continue to be nominated; they
> just couldn't do anything
> at the federal level).
>
> The point of the story is that that the political
> shift in the Republicans
> came AFTER the Court killed the Reconstruction laws.
> History tends to
> focus on the deal in 1876, but the fate of
> Reconstruction had already been
> sealed by the Cruikshank and Reese decisions, since
> blacks de facto were
> going to have no chance to vote or defend their
> civil rights in any case,
> whoever controlled the federal government.
>
> One of my points is that liberalism has obscured
> this history-- in the
> Progressive Era, they ignored it because they wanted
> to make common cause
> with white racists in the South on economic issues,
> and then wanted to
> obscure it because they were defending court power
> under the Warren Court.
> But it was the Supreme Court before the Civil War
> that struck down the
> Missouri Compromise as unconstitutional and allowed
> slaves into every
> territory, thereby precipitating the Civil War.
>
> And it was the Supreme Court after the Civil War
> that made the Klan's
> violence untouchable by federal law enforcement,
> thereby dooming
> Reconstruction.
>
> And it was the Supreme Court that would block
> progressive economic
> legislation for decades in the Lochner Era. I've
> never seen a good
> analysis on this question, but in the whole "Why No
> Socialism in the US"
> debate, the role of the Court in making socialist
> policies nearly
> impossible to enact for decades should be part of
> the calculus.
>
> -- Nathan Newman
>
>
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