Preserving Federalism: Reconstruction and the Waite Court

Benedict, Michael Les

doi:10.1086/scr.1978.3109529

Cited by 18 publications

(3 citation statements)

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“…78 At best, Michael Les Benedict has argued, the Court instead remained bound to an ideology of "State-centered nationalism" that constrained its willingness to act vigorously in favor of racial equality. 79 Patterns of judicial action respecting federal laws, however, are only part of the story about judicial activism in this era. The LOC data contain eleven cases between 1860 and 1879 in which federal laws were invalidated, and forty-nine cases in which state enactments were invalidated.…”

Section: B the Postbellum Periodmentioning

confidence: 99%

When Was Judicial Self-Restraint?

Huq

2012

SSRN Journal

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Section: B the Postbellum Periodmentioning

confidence: 99%

When Was Judicial Self-Restraint?

Huq

2012

SSRN Journal

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“…This became an issue during the Franklin Roosevelt administration, when new legislation addressing racial violence came to the forefront. But in fact, reconstituting the legal capacity was unnecessary (Benedict 1978; Brandwein 2007; Brandwein 2011; Goldstein 2007; Labbé and Lurie, 2003; Ross 2003). No new law was needed for the federal government to engage in stopping racial violence.…”

Section: Fdr and Lbj Administrations: From Weak To Strongmentioning

confidence: 99%

Strengthening the Weak State

Kato

2012

Du Bois Rev.

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This essay charts the development of the American state during the era when Southern lynchings prevailed. Contrary to the standard interpretation that depicts the American state as having lacked the administrative and legal capacity to protect the lives of Southern Blacks, it is a more pluralist conception of state weakness for which I argue, one that characterizes the American state's behavior regarding racial violence as the deliberate, calculated act of an active state choosing not to act. The state had always possessed legal authority to prosecute lynch mobs, but the key determinant was garnering the political will to enforce the law. Examples gleaned from the Ulysses S. Grant, Franklin Roosevelt (FDR), and Lyndon Johnson (LBJ) administrations illustrate the American government's political vacillation between acting and not acting. Examinations of two Supreme Court cases in 1966 highlight the political nature of federal rights enforcement. In light of the 1966 Supreme Court decisions inUnited States v. PriceandUnited States v. Guest, the Court appears never to have repudiated or stripped the federal government of all of its authority to engage in combating racial violence. Even though the Court clearly signaled during Reconstruction that it was not going to uphold claims of rights violations of Blacks in the South, it did so without ever making a substantive decision on whether it could. Sections 241 and 242 of Title 18 of the United States Code were, in effect, placed into suspended animation; it was only when there was a political will to reengage with federal rights enforcement that the Court resuscitated these laws. In the parlance of the weak state thesis, the American state did not lose its capacity to combat racial violence; rather it simply chose not to engage.

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“…Klarman 1995; McConnell 1995); and the character of federal enforcement power (cf. Benedict 1978; Kaczorowski 1985). Portrayed as continuous, however, is a “legal order” (Edwards 2015, 149) comprised of the elements of “early liberalism” (Smith 1990, 3).…”

Section: Introductionmentioning

confidence: 99%

The Slaughter-House Dissents and the Reconstruction of American Liberalism

Brandwein

2023

Am Polit Sci Rev

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American liberalism has long been divided between early “classic” and modern forms, a transformation associated with the rise of the social welfare state and the New Deal. The long-running critique of Hartzian consensus theory has left intact that division, which is likewise expressed in literature on the Reconstruction Amendments. This article offers a new staged theory of American liberal development in the nineteenth century, accomplished through the prism of public law. Newly elaborating and theorizing the governing frameworks of the antebellum “well-regulated society” and reading judicial disagreement in the Slaughter-House Cases (1873, 83 U.S. 36) in terms of these institutional frameworks, I show how the dual liberty paradigm of the well-regulated society was rearranged in Bradley’s dissent. By elevating a conceptual split between the dissents of Field and Bradley and by tracing in Bradley’s dissent the reorganization of police powers jurisprudence, I illuminate the fashioning and rapid diffusion of modern rights individualism.

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Preserving Federalism: Reconstruction and the Waite Court

Cited by 18 publications

References 0 publications

When Was Judicial Self-Restraint?

When Was Judicial Self-Restraint?

Strengthening the Weak State

The Slaughter-House Dissents and the Reconstruction of American Liberalism

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