Textual Corruption in the Civil Rights Cases

The Civil Rights Cases 1 do not quite rival Plessy v. Ferguson 2 for notoriety as the decision that most clearly confirmed the failure of Reconstruction and the rise of Jim Crow. Yet the Civil Rights Cases did far more than Plessy to limit federal power to address the continuing consequences of slavery. They declared unconstitutional the Civil Rights Act of 1875 insofar as it prohibited discrimination in public accommodations operated by private parties. Congress passed that act under its powers to enforce the Thirteenth and Fourteenth Amendments, but the Court held the act unconstitutional on the ground that private discrimination was neither a badge or incident of slavery under the Thirteenth Amendment nor a manifestation of state action under the Fourteenth. Although the Court's holding under the Thirteenth Amendment was effectively overruled by the Warren Court, 3 its holding under the Fourteenth Amendment continues to be influential, supporting a decision of the Rehnquist Court striking down the Violence Against Women Act. 4