A Judicial Abandonment of Blacks? Rethinking the “State Action” Cases of the Waite Court

Abstract

This article reconsiders the conventional wisdom that the Supreme Court definitively abandoned the freedmen to their former masters through the “state action” decisions of the 1870s and 1880s. Arguing that anachronisms distort our understanding of this critical period, I offer an historical institutional analysis of state action doctrine by recovering the legal categories, assumptions, and distinctions that constituted judicial discourse about the state action rule. Showing that federal power to protect blacks was more intact than scholars realize, I also add a perspective from the sociology of knowledge. By examining a series of modern developments that erased the contexts of the state action decisions, I show how institutional practices gave rise to the anachronisms that this article seeks to correct.

Party Matters

“…The South in turn comprises those states that did. For an excellent discussion of the electoral incentives driving this, see Valelly 1995. Brandwein (2007, 2011 shows that Supreme Court abandonment of African Americans did not happen until the mid-1890s, also contrary to earlier accounts that date this shift in the mid-1870s.…”

“…For an excellent discussion of the electoral incentives driving this, see Valelly 1995. Brandwein (2007, 2011 shows that Supreme Court abandonment of African Americans did not happen until the mid-1890s, also contrary to earlier accounts that date this shift in the mid-1870s. To be sure, the extent of this opportunity once a party takes power then depends both on party unity, which the analysis below will show was generally extensive in the realm of nineteenth-century racial policy, and on the limited availability of institutions with which legislative minorities can thwart the majority's agenda.…”

“…This evidence, which is examined in detail below, shows the various ways Republicans remained committed to voting rights enforcement in the South well after 1877. If an abandonment narrative applies at all, the NPH shows, then abandonment came much later than previous accounts suggest: in the early 1890s rather than the mid-1870s (Brandwein 2011;Calhoun 2006;Kousser 1974;Valelly 2004Valelly , 2009Wang 1997).3 Undermining the Republican abandonment narrative raises the question of why Republicans did not strengthen the federal legal apparatus once it became clear by the late 1870s that existing laws were insufficient to neutralize southern white resistance to black suffrage. Because the NPH has been most concerned with countering the Republican abandonment narrative, this question has not been a major focus.…”

Party Matters: Racial Closure in the Nineteenth-Century United States

“…For an excellent discussion of the electoral incentives driving this, see Valelly 1995. Brandwein (2007, 2011 shows that Supreme Court abandonment of African Americans did not happen until the mid-1890s, also contrary to earher accounts that date this shift in the mid-1870s.…”

“…This evidence, which is examined in detail below, shows the various ways Republicans remained committed to voting rights enforcement in the South well after 1877. If an abandonment narrative applies at all, the NPH shows, then abandonment came much later than previous accounts suggest: in the early 1890s rather than the mid-1870s (Brandwein 2011;Calhoun 2006;Kousser 1974;Valelly 2004Valelly , 2009Wang 1997).Û ndermining the Republican abandonment narrative raises the question of why Republicans did not strengthen the federal legal apparatus once it became clear by the late 1870s that existing laws were insufficient to neutralize southern white resistance to black suffrage. Because the NPH has been most concerned with countering the Republican abandonment narrative, this question has not been a major focus.…”