Contributor, The Volokh Conspiracy

G. Edward White, eminent legal historian at the University of Virginia, has written a wonderful book covering American legal history from the post-Civil War period through the 1920s. The whole book is great, but to me the standout chapter is the very first one, in which White reviews the Supreme Court’s understanding of the 14th Amendment and civil rights in the Reconstruction period.

So much has been said on that subject that one might think there isn’t much more to say. But White provides an extremely lucid and persuasive account of the Court’s 14th Amendment jurisprudence from that period. Unlike many law professors, he is not trying to prove any particular normative point about how this jurisprudence should inform our understanding of current controversies, but simply to explain the court’s decisions through the eyes of those who made them.

In essence, White argues that while the radical Republicans wanted the court to nationalize the protection of “civil rights,” the court’s majority believed that the 14th Amendment did not fundamentally alter the relationship between the states and the federal government. The exceptions were a limited category of national rights identified by the majority in the Slaughterhouse Cases, and with regard to involuntary servitude, plus voting rights specifically protected by the 14th and 15th Amendments. Congress could use its 14th Amendment Section 5 power to protect civil rights, but only when (a) state action was involved; or (b) Congress was responding to specific failures by the states to enforce civil rights. White believes that conflict between Congress and the court on civil rights was less a product of the court purposefully abandoning the cause of civil rights, especially for the freedmen, and more a product of the court being unwilling to radically change its conception of the scope of civil rights and federal power. A logical corollary is that if national politics had remained favorable to the cause of civil rights, Slaughterhouse and the Civil Rights Cases would not have been a barrier to legislation responding to established violations of civil rights by state and local governments. White’s explication of the court’s position is much more detailed and elegant than my brief summary can convey, and is worth reading in full.

The chapters on the Supreme Court and “guardian review” during the so-called Lochner era are also especially rewarding (perhaps especially for me, because this is my area of scholarly expertise). White provocatively argued that the court’s Commerce Clause, antitrust and liberty of contract opinions had a significant commonality: trying to police the line between reasonable and therefore lawful regulation, and arbitrary and unlawful exercises of government power.

As with any such volume, one can quibble with what is included and what is excluded. Some readers may find the volume too heavy on national and especially national constitutional history, not heavy enough on state and local developments. That said, my own interests lie more with the former, so I was pleased with the selection.

The book is well-written, but it’s not easy beach reading. Many readers will undoubtedly find themselves choosing to read the chapters of most interest to them, rather than absorbing the entire 680-page book.

But if you have an interest in the subject matter, this book should be in your library.