wild descendents of noble and ancient lineage, they are prized reading stock. buyers traveling hundreds of miles for the wild horses. x next, the university of michigan professor and author pamela brad one describes the legal landscape after the civil war and explains some of the federal court cases. her talk was sponsored by the supreme court historical society and is about one hour and 15 minutes. justice ginsberg: tonight's lecturer is professor pamela brandwein.

she earned her master's and doctoral degrees in sociology from northwestern. she is a highly regarded analyst of the period in u.s. history we call reconstruction. our topic this evening if the lost history of the reconstruction amendments. i am told the lecturer hones in particularly on the 14th amendment. the professor is the author of "rethinking the judicial settlement: a construction," published in 2011 by cambridge university press, and "reconstructing reconstruction the supreme court and production of historical truths," published in 1999 by duke university press.

she is the author of numerous scholarly articles, chapters and conference papers. she has delivered invited lectures from coast to coast. professor brandwein has won several awards for her excellence as a teacher. i will not intrude on her time one moment more. please join me in welcoming professor brandwein and inviting her to the podium. [applause] professor brandwein: thank you

justice ginsburg. thank you to the supreme court historical society. it is really an honor to be here. it is such a great privilege to be speaking to you tonight and to be speaking about reconstruction and the 14th amendment. i want to start with the conventional story of the court and reconstruction. of course reconstruction was america's second revolution. the 13th amendment involved slavery. there was going to be, in lincoln's words, a new birth of freedom, but according to the conventional story of reconstruction, reconstruction was dead by 1877. the weapon was something called

state action doctrine. state action doctrine holds that the rights guaranteed by the 14th and 15th amendments are protected against the government only. we get this from the text of the amendments. as you can see in your hand out -- i'm a dinosaur i used handouts. i have given you a snippet of section one. those states shall deny to any person the equal protection of the law. we need a distinction between state action and private action to get the amendments off the ground, to make it usable. we see a state private distinction in the quotes for state action doctrine. the first section in the 14th amendment is prohibitory upon the state. it is state action that is prohibited, individual invasion of individual rights is not the subject matter of the amendment.

we cannot have a code of minnesota law for private rights. we see a general distinction. but the conventional view is that state action doctrine put a major problem outside the reach of the 14th and 15th amendments, and problem was unpunished klan violence. this was rampant across the south. klan violence was the major form of resistance to reconstruction after 1866. according to the conventional view, the state's failure to punish the plan, unequal enforcement of the law was not state action. klan violence by individuals was private action, always, under all circumstances. it could never be touched under the 14th or 15th amendment. under this reading it makes sense to see state action resistance is handcuffing the federal government. there are a number of reasons for thinking that the story is plausible. the outcomes of the state action cases the first major reason. there was a brutal massacre committed by private individuals in the quick shank redemption of 1876. nobody was punished.

there were exclusions. there were a number of reconstruction era statutes thrown out by the supreme court during this time. the court was generally unfriendly to reconstruction. second, there was no broad statement from the court in the state action cases. we never get a strong endorsement for black it all at the under the law -- equality and or the law and we don't even get facts and quick shank. the court never even tells us about the facts. we have gratuitous racism from justice bradley, the author of the civil rights cases. this is a canonical case that threw public accommodation rights, state action case. he says very famously he casts blacks as the "special favorite of the law.

this is a phrase we get repeated in every single excerpting of the civil rights cases. the compromise of 1877 according to the author of this account, he tells us in the wake of the disputed election of 1876, there was a deal between republicans and democrats. the democrats get control over the former slaves. according to see van woodward, this is the falling of the curtain reconstruction and's. -- ends. it looks like the court is giving us a narrow definition of state action. on top of that, this is something scholars have pointed out, the text of the 14th amendment can accommodate the view that the on the enforcement of the law is a violation amid

the protection clause and the legislative history certainly tells us the republicans across the board understood the unequal enforcement of the law and violation of equal protection clause. this narrow understanding of state action looks unnecessary. my point of entry into all of this is the revisionist literature. on the republican party and on political events, in the 1870's through the 1890's. this new political history has emerged in the past 15 years or so. the basic finding is that the republican party did not abandon blacks in 1877.

the party or that wing of it that controlled the presidency maintained a principled and pragmatic effort to protect black rights, in particular black voting rights through the early 1890's. this effort is encumbered by this effort is genuine and it is still there through 1891. the story of the compromise of 1877 is basically a myth. this new political history has not been grappled with in the legal literature. and it needs to be. it throws this conventional story about state action off-balance. i went to identify some highlights from this political history literature. it sets the scene for talking about what is going on in the court. the first highlight is the economic panic of 1873. this manic triggered a

depression, a steep depression depression that ran throughout the 1870's. it was known as the great depression of the time. the new york stock exchange closed for 10 days. unemployment hit 14%. 18,000 businesses went buff. a quarter of all railroads went bankrupt. there were deep wage cuts. this depression fundamentally change the politics of civil rights enforcement. voters blamed republicans for this. republicans had control of the national government. when there is a deep economic decline and there is a party in power, people blame the party in power. democrats got control of the house in 1874. this fundamentally changed things. the democrats controlled appropriations. more generally, civil rights enforcement became the political liability for the republican

party in the context of the depression. civil rights enforcement became much harder. at this point in time republicans are trying to build a southern wing of their party. they need to build a southern wing to their party in the 1870's. they try all kinds of things everything fails in the face of democratic fraud and democratic violence, and every time it fails republican presidents turned back to rights enforcement. the returns are diminishing in the 1880's. rutherford hayes, the republican president in 1876, we have the first iteration of the cycle. he tries to bribe the south. he says, we will give you money for infrastructure. he assumes the democrats will play nice too. that does not happen. in the 1878 election, more fraud

and violence. democrats now get the senate. the democrats now have control of both parties of congress. hayes called his conciliation policy a mistake. he says this publicly. he says this is rented in newspaper articles -- printed in newspaper articles and he turns back to rights enforcement. he vetoes on a number of occasions democratic efforts to repeal construction legislation. hayes is still clearly on board with keeping reconstruction alive. there is an upturn in a significant way in the 1880's. james garfield is elected president. the runs on black rights. this is his campaign spot. the election of 1880 could have

been the election of 1868. it is sectional antagonism all over again. garfield wins. the republicans get that control of the house and the senate. is happening when the depression lifts. the depression is lifting by 1880. there is a significant upturn in voting rights enforcement. between 1880 and 1885 there is a significant upturn in the voting rights prosecutions that the republican administration is bringing in the south. this voting rights upturn would the impossible it he -- be impossible in the conventional wisdom about state

action doctrine were correct. if that conventional wisdom were correct, we could not see this upturn. on top of that, the court approves it. there is a very important case in 1884 called the yarborough case. this decision approves of the voting rights theory that the garfield and arthur administrations are using to bring all of these cases. the supreme court in 1884 -- no one used to talk about this case -- supreme court is sending klansmen to jail. klansmen are going to jail under the 15th amendment, and this decision is unanimous. there is stronger language and yarborough, finally, from the court around violence and free elections and rights. all of this is unexplained under the conventional story. something is not right with the conventional story, otherwise we could not have seen this upsurge in voting rights enforcement. what is going on? something is going on here. there is a puzzle. what i do in the 2011 book is that i recover a lost jurisprudence of rights and rights enforcement and i am challenging the conventional wisdom about state doctrine. there are three elements to this jurisprudence.

these three elements, there is a state neglect formulation of state action. this concept of state neglect can protect blacks from unpunished racial violence. it covers unpunished racial interference in property and contract. it covers black voting. it does not cover public accommodations and it does not cover access to integrated schools. it certainly does not cover racial intermarriage. it has that state neglect concept. we have something i call the 15th amendment for exemption from state action doctrine. the 15th amendment is exempted from state action rules by this court. this looks weird today. the 15th amendment has no state language built into it great seems strange. there is a principled rights distinction that underlies it. i will talk more about that. the 15th amendment exemption

provides a robust theory of voting rights enforcement for the federal government because all you need to show is a racial motive to prosecute under the 15th amendment. you do not need to show state action of any kind. the 15th amendment exemption is quite a powerful element of this voting rights jurisprudence. the third element is the federal elections jurisprudence. the court points to a section of because to two and that allows -- section of the constitution that allows the federal government to have plenary control over congressional elections. regardless of the motive, white republicans can come under the protection of this as well as blacks during this time, see you

so you do not need to have a racial motive and you do not need to show state failure or neglect of any kind. this rights theory is fairly robust. when it comes to black physical safety, contract and property rights, voting rights, white republican voting rights. nothing that goes under the mantle of social equality. it covers a sphere that those folks called association. public accommodations, marriage, schools -- this is a sphere that even centrist republicans kept walled off. this is a sphere of white supremacy. but it is combined in this discourse with protections for black physical safety, contract,

and voting. it is a mistake to think about racism as a dichotomous variable. racism exists along a continuum and the centrist republicans were right in the middle. the men who articulated this jurisprudence, they were not like frederick douglass. at the same time, they were not like the democrats. let me turn to layout this state neglect concept. it has its origins in the problem of unpunished klan violence. klan violence is going on in a massive scale in the south. the failure to punish the klan is seen as a basic rule of law issue. violence against lax is been committed with impunity. -- blacks is being committed with impunity. the klan was being exempted from the law. it was clear to republican congressman that this was a violation of republican principles. it was a very old idea that government had a duty to provide equal redress for injuries.

this is part of the natural rights tradition, the government has a duty to provide equal redress for injuries. republicans use this idea in developing this concept of state neglect. it is centrist republicans who are developing this concept. centrist republicans are doing the work in developing this concept and they are doing it not in opposition to the democrats, because the democrats are voting against every piece of reconstruction legislation. the centrist's are developing this concept in arguing with the radicals. the radicals want to give the federal government original control over crime. that means the radicals wanted it to say whenever there is a crime, the federal government can come in and punish that perpetrator regardless of what the states are doing great the the radicals wanted to give original control over crime, over klan violence. the centrist says no. the centrists said, we have to make federal punishment of the klan contingent upon a showing

of state failures. in the first excerpt from the handout, i have given you a piece of james garfield's speech in the debate over the ku klux klan act. james garfield says, the chief complaint is not that the laws of the state are any will but -- state are unequal, but even where the laws are just and equal on their face, yet by a systematic maladministration of them or neglect or refusal to in horse their provisions, a

-- to enforce their provisions, a portion of the people are denied equal protection under them. he then introduces the state neglect predicate. he says whenever stated facts are clearly made out, section five empowers congress to step in and provide for doing justice. he reiterates this. congress may not take jurisdiction of the subject until such denial be clearly made. congress can assume original jurisdiction of the rights of either persons and property. this is garfield articulating the state neglect concept very he is clearly making punishment of individuals contingent upon state failure. current scholarship for the most part sees this concept of state neglect in congress. what i am saying is that this concept finds its way into supreme court decisions. the way in which this concept is

formulated in constitutional terms, this is a mature formulation trade we basically have a plan. this assault, the status of this assault depends on whether or not the state has a habit of punishing this kind of violence. the status of this assault is private if remedies are normally available. if remedies are not normally available, this assault gains what is called the color of law or custom. the federal government can come in and punish this person. what the federal government is doing is they are not punishing private conduct. they are punishing a private individual. that punishment has to be made contingent on a showing of the failure to derive remedies. this is how this concept works constitutionally. we see this concept emerge in mason form in the cruickshank decision of 1874.

this is bradley's circuit opinion of 1874. this case involves a brutal massacre, between 62 and 81 people are killed, most of them in cold-blooded form, execution style. nobody was held accountable for this. the federal government tried to indict 97 people. they got convictions of three of them. the supreme court ultimately throws out the indictments of these three people. the conventional view it is it is this cruickshank decision that gives the green light to the cruickshank is a decision that handcuffs the federal death across the board -- government across the board.

cruickshank clearly give comfort to the klan on the ground. they saw their fellow klansman walking free. the legal and political story is much more complicated. the story spans 10 years. justice bradley is the guy who writes the civil rights cases. he gives the special favors of the law comment. he is the one writing the circuit opinion. he is doing what justices did at the time. bradley had charge of the fifth circuit. he's down there in louisiana where this massacre took place. his 1874 opinion is a milestone in constitutional development. bradley is attempting a coordinated theory of all three reconstruction amendments.

there is nothing in the case that demands he do this, but he does this and he is not entirely successful. principal content that winds its way through the opinion, and bradley makes key choices here. some of these choices involve rebuffs to congress. some of these choices involve emitting federal power over rights. choices not only open the door to federal enforcement of rights. he is providing a robust 15th amendment jurisprudence, federal elections jurisprudence. he throws out the charges. this is why this case is complicated. these klansmen walk free. at the same time we are getting a blueprint for future indictments and when we keep the clock rolling, the federal government is following this blueprints.

they are following his lead. hence the complexity of this case. let me briefly sketch the basis for this coordinated theory. the basis for this coordinated theory is a rights distinction that was conventional in the 19th century but is gone today. it's not familiar anymore to folks. there are two kinds of rights. we have natural rights. natural rights that are seen to preexist the constitution had their source and nature or had

been won against the kings of england. they are what is called the declared by the con and or secured by the constitution. -- they are what is called declared by the constitution or secured by the constitution. natural rights pre-existing the constitution but declared by the constitution. then there are rights that are created by the constitution. they have their source in the documents. these are called rights that are created or given or conferred or granted. but this is a totally different kind of rights. the constitution was a hybrid document in the 19th century. for bradley, this rights distinction is critical. when he says is the manner in which congress can protect rights depends on two things. it depends on the language of the constitution and the kind of right that is at issue. for natural rights, property contract, suing, testifying, witnessing, having equal redress for remedies, for natural rights that are protected by no state language, by the prohibitory language, bradley says the states have original jurisdiction over these rights but the federal government can come in and protect them if the states deny these rights.

this is state action doctrine. when bradley is articulating state action doctrine, he gives us state neglect which. back to the excerpt. united states versus cruickshank. he says when a right is denied by a state on account of race, either by withholding the right itself or the remedies which are given to other citizens to enforce it, undoubtedly congress has the power to pass laws to enforce the right and punish individuals. notice, punish individuals for violations because that would be the only appropriate and efficient mode of enforcing the amendment. we have this nascent state neglect concept articulated by bradley. he also says it clearly in his personal correspondence. 1874 he says, to have redress for injuries, the same as all others have, is to have and enjoy the equal protection of the law. it could not be more clear.

we also see coverage of bradley's opinion that also sees the state neglect concept. i have given you a snippet from the "chicago tribune" on the flip side. a centrist republican newspaper. they are seeing the state neglect concept articulated by justice bradley. very similar language. the moment the state fails to comply with the duties enforced upon it, the united states is called on to interfere. here comes the state neglect predicate. the interference of congress when a state is ready to punish a violation of these rights, is unnecessary, injudicious, and illegal. congress has the power to pass laws to enforce the amendment.

we're seeing this concept of state neglect not only from bradley, not only his personal correspondence, but media coverage of this decision. state action doctrine in its fullest articulation, which we get in this opinion, only applies to the 14th amendment. this seems surprising today because the 15th amendment has no state language also built into it. the reason bradley does not ultimately apply state action to the 15th amendment is because the 15th amendment creates a right. the right to vote is seen as a created right, not a natural right. it is ultimately created by state constitutions, but the right the 15th amendment creates is the right to vote re-from -- free from racial interference. for bradley, when a right is created by the national constitution, the national government has full control over that right enforcement. the right to vote re-from racial

-- free from racial interference becomes a right to the national government can protect against private people, officials, regardless of state action. the 15th amendment gives bradley trouble because of the no state language. we see him have some trouble with this, and i have even you another excerpt where he is wrestling with this. he says, although negative in form -- this is this reference to 'no state' language -- and therefore at first you apparently to be governed by the rule that congress has no duty to perform until the state has violated its provision nevertheless in substance the 15th amendment confers a right which did not exist before. he concludes -- he's going back-and-forth and he concludes by saying congress has the power to reach outrage, violence combinations on the part of individuals irrespective of state laws. this is the first articulation of the 15th amendment.

bradley also queues about the right to vote in federal elections. we have something called article one, section 4, which says states can set the time, places, and manner of congressional elections. but, that congress may at any time -- key language -- make or alter such regulation. from this, bradley says we have another created right, the right to vote in federal elections. this is a very robust voting rights enforcement theory. we get national power to punish private and official interferences and congressional elections, regardless of motive, which means white republicans can be protected by this and regardless of state action. bradley then applies this rights

theory to the indictment. what he does is that he throws them all out. all the indictments are bad under his theory. he throws out the 15th ammendments indictments because, he says, these indictments are bad because they do not allege a racial motive for he says, that is the only thing you need. it is worth noting in this context there is a guy -- he has charge of the ku klux klan trials in south carolina. judge hugh bond is known as a very strong reconstruction supporter, without any doubt hugh bond good on reconstruction. hugh bond throws out 15th amendment counts for exactly the same reason that bradley does during these klan trials. given that hugh bond is doing this, a clear, unambiguous supporter of reconstruction, we should be careful what we assume

about bradley when he throws out these 15th amendment counts. what might be more puzzling -- amendment is about race. what is more puzzling is that bradley throws out the counts under the equal protection clause. also because there is no allegation of a racial motive. the equal protection clause says nothing about race. what is going on here? something is clearly going on. what i suggest is going on is that bradley is issuing a partial rebuff to congress. he is narrowing the protection clause to race. this is not in the text, the court is doing this on its own. we know he is narrowing the equal protection clause is republicans in congress wanted to protect political violence as

well as racial violence under the equal protection clause. when folks like a garfield were talking about the state failure to protect, he and all of them were including the state's failure to protect white republicans as much as blacks. congressman included clinical violence as well as racial -- included political violence as well as racial violence within the ambit of the state neglect context. when bradley says, you must allege a racial motive, what he is saying is that it cannot be a political motive. he is filtering out political violence from that state neglect concept. the same time, he is saying you can prosecute men like cruickshank if you do allege a racial motive. legally, the door remains open. and proof thresholds for establishing race base -- you

have to show there is a racial motive. what are the proof thresholds? if you look at the circuit court opinions at the time, it does not look like those two proof thresholds are very high. they actually look quite low. it's nothing like the animus standard that currently exists in constitutional law. it looks fairly easy to ring a claim that there is a racial motive here. on top of this, klan lawyers are very alarmed by bradley's opinion. the klan on the ground love it because their guys are walking free. the democratic press tries to spin bradley's opinion as shutting the door on federal enforcement. all of the independent classes know this is political spin. -- all of the independent press says, no, this is just political

spin. republican papers are saying that his political spin. klan lawyers are very alarmed at state neglect theory and they spent the entirety of their brief in their arguments before the supreme court arguing against bradley's state neglect theory. even though they won -- they know their guys will continue to walk but they are spending all their energy on the state neglect theory. that alarm and attacks suggest there is real weight behind bradley's state neglect concept. from his rights theory, he is generating a blueprint for future indictments. we have that state neglect concept over political violence. we have the 15th amendment exemption from state action rule. we have federal elections jurisprudence. we have all this even without incorporation of the bill of rights.

even if the privileges and immunities clause are gutted -- the cruickshank decision in 1876 is going to tell us for sure privileges and immunities is gutted. we have this whole entire jurisprudence. two other notables about this opinion, bradley consults with the court justices in the midst of this trial. he goes back to d.c. he is consulting with them about this rights theory. this is significant because after this opinion, it is bradley's circuit opinion, not the supreme court opinion that will follow two years later, but bradley's circuit opinion that is cited by the supreme court in a bunch of cases from 1882 to 1907. bradley's circuit opinion is named as the authoritative expression of the decision, not the court's opinion in 1876. this is tied to the fact that

bradley has consulted with the justices over this opinion. it carries enormous authority at the time. the other thing he does is that he circulates it widely. very unusual for a circuit opinion to be circulated. he sends it to cabinet members major legal periodicals, southern judges. everybody knows about his rights theory. when it comes to understanding what the court did two years later, we have to understand that court decision two years later against this background of bradley's widely circulated, highly authoritative court opinion. we get now this 1876 opinion. this opinion is written by the chief justice. this opinion is being handed down in the run-up to the 1876 election. the country is in the midst of a horrible depression. the republicans look and they are going to lose the national election.

they already lost a house in 1874. they looked like they would lose the presidential election in 1876. they are getting buffetted by these corruption scandals the democrats are pushing and pushing. chief justice wade gives us broad generalizations, difficult to a gear out what is going on can't really argue with these generalizations. he tracks bradley's logic on why the 15th amendment counts are bad, why the equal protection counts are bad trait he cues about article one, section 4 and federal election law. it looks like there is the shorthand version of bradley's opinion. there is no theory. he does not give us any of the

theory that bradley gives us. we don't get the facts. nothing about the facts of this brutal massacre. he also tells us clearly, no incorporation of the bill of rights. at the same time he treats as constitutional the reconstruction statute under which cruickshank et. al. were prosecuted. statute becomes the basis for future successful prosecution. this decision in 1876 difficult to parse. it looks like it is decided taste on technicalities. the newspapers at the time say this decision was decided on a technicality. many of them are disappointed with this decision. they do not see it in the terms that people see today. they do not see it as those in

-- as closing the door on right enforcement. part of understanding cruickshank means keeping the clock rolling. once we look at what happens after this decision. we start to get more clues about what might have been going on in 1876. what happens immediately after the attorney general sense -- sends marshals out to cover the 1876 election, which everybody knew would be bad in terms of violence and fraud. taft is writing up this circular and he's doing it expressly under the authority of cruickshank and its companion case. taft is seeing in these opinions authority for what he is doing. the grant administration is seeing these decisions as actually providing rights enforcement. the u.s. attorneys start drawing

up proper indictments under the 15th amendment. now they are alleging race when they bring the 15th amendment charge. they start doing what bradley had told them to do. some of these cases stick. one of these election cases comes up before chief justice waite. this is another election related massacre. this case got national attention. united states versus butler, not part of the conventional story of legal reconstruction. chief justice waite, same guy who wrote the opinion for the court in 1876, no facts, looks noncommittal but still gives us the technical reason for throwing out the indictment, one year later the election is over and republicans have one.

won. wade gives us a circuit opinion where we get 12 pages of facts. he gives us every detail of this brutal massacre. we get this from him in 1877. we also get from him a very clear articulation of the 15th amendment exemption. this is a 15th amendment charge. we get this from him in 1877. he is giving a jury instruction. what he says in very clear terms is, and important to you or us is whether the state or its officers have been unable or unwilling to punish offenses against its own laws. he says the only thing that matters in this case is the race of the victim. here the u.s. attorney has drawn up the indictment properly. race is alleged towaite says the

-- race is being alleged. waite says the only thing that matters is that the u.s. attorney has properly brought up the indictment, and that alleges a racial motive. very clear endorsement of the 15th amendment. then we get garfield's election. james garfield is now elected in 1880. we have this upsurge in voting rights enforcement which i mentioned earlier. folks are being prosecuted under the same section the government used to prosecute cruickshank. it is being used successfully in the 1880's. the charges in yarborough, the successful case under the 15th amendment and federal elections law, the upsurge in voting rights enforcement, they are 15th amendment and federal cases. if you are a u.s. attorney and capital is low and you don't have a lot to spend, you are going to get the easiest case you can. you are going to go for the charges you know can stick.

it's a lot easier to bring a 15th amendment case or federal elections case than it would be to bring a state neglect case. under a state neglect case, you still have to show state failure. it is unclear what the thresholds are. if you want to win, you will go with the 15th amendment. if you want to go with federal elections, you don't need to show race. they are being successful under these prosecutions. we do not want to conclude from this that the state neglect formulation is gone. we will see it rearticulated by bradley in 1883. yarborough is a unanimous decision. this generally knocks people over. it is a decision written by

justice miller, and folks don't expect it from the court. i am suggesting that within defined bounds, the court is not hostile. the rights theory that the federal government is using in 1884 that they had been using for the previous 4, 5 years, this is the right theory that traces back to cruickshank. this is the rights theory that traces back to bradley and his 1874 opinion. this 1874 opinion is complicated. sets the stage for the civil rights cases. the civil rights cases, that 1883 opinion, this is the opinion that involves exclusions from a public accommodations. this is the opinion that is conventionally understood as consolidating this abandonment of blacks and giving this very narrow definition of state

action doctrine. strikes down the public accommodations provision of the civil rights act of 1875. it is about the exclusion from public accommodations. this is not a separate but equal

case. we do not see separate but equal laws until the 1890's. there are two things i want to call attention to in the civil rights cases. the first is the use of a distinction between civil rights and social rights. these terms, this distinction is part of a rights hierarchy that was used during the reconstruction era to debate the meaning of freedom. this rights distinction is gone today but when we recover it we get much better sites on what is going on in the civil rights cases. the term civil rights as it was understood back then -- we still have the same turn today -- it was understood act then quite narrowly. the core civil rights, property, contract, suing, testifying, witnessing, having equal redress for remedies -- these were the core civil rights. there was consensus that these were civil rights -- there was consent between centrists and

radicals, that these were civil rights. for centrist republicans, access to public accommodation rights integrated schools, interracial marriage -- these were called social rights. these things were not included in the civil rights category. this is a realm where centrist republicans were expressing white supremacist commitments. this is the limit of centrist republican egalitarianism. it is this combination that was distinctive. commitment on civil rights narrowly defined, voting rights -- but that's it. when bradley is talking about the 13th amendment justification or possible 13th amendment justification for these public accommodations provisions, talking about the meaning of freedom, he says explicitly that public accommodation rights are social rights. he says, public accommodation rights are social rights. justice harlan in dissent says public accommodation rights are social rights. at the time harlan was expressing a radical republican position.

that position had always in marginal. you might he wondering -- we had the passage of the activation. didn't there have to be broad republican support because it got passed? the answer is actually no.

this bill was bottled up for years and years in congress. it passed for two reasons are it the first reason was that charles sumner died. charles sumner -- this was his bill. republicans deeply wanted to memorialize him. they wanted to memorialize sumner, even as many centrist republicans said at the time the bill was unconstitutional and would be dead on arrival. the desire to memorialize sumner was genuine. there was a lame duck congress. the democrats had just gotten control of the house of representatives in the 1874 election and there was a big turnover. this bill passed by a margin of three that was constituted by those republicans who had just lost their seats in the 74 election. these same republicans would refuse to support the bill until they lost their seats and until sumner died. absent those two developments, this bill never would have left committee. i want to turn now to walking through this last excerpt. i need to set this excerpt up. what is going on here is that radley is expressing approval. the public accommodations provisions are bad. striking them down, giving us these nasty special favors of laws comment.

within that context we get this excerpt. he is expressing support for the civil rights act of 1866. the act of 1866. he is saying that this is clearly corrective legislation. the act of 1866 was originally passed to enforce the 13th amendment. the act of 1866 originally passed to enforce the 13th amendment, repast -- re-passed as 14th amendment legislation. what is critical about this is

the act of 1866 has an enforcement clause. that enforcement clause says federal penalties for a person [indiscernible] what he's doing in this excerpt is marking out a distinction between individual wrongs, private wrongs that do not have the color of, that are not violations of civil rights, that the federal government cannot touch under the 14th amendment an individual wrongs that do have the color of law and that do violate the 14th amendment and you can punish them under the 14th amendment. let's turn to this excerpt. the first four lines i'm going to read. they are all important. civil rights such as are guaranteed against state aggression cannot be impaired by the wrongful act of individuals unsupported by state authority in the shape of law, custom, or

judicial executive proceedings. the wrongful act of an individual supported by any such authority is simply a private wrong. know the language of state support. it comes in multiple variants. private wrongs, line six, are those not sanctioned or approved in some way by state authority. private wrongs are at line 12 not protected i some shield of state authority. it is in these instances, line seven, the right to remain in full force, and they presumably be vindicated i resort to the state for redress. there is no civil rights violation under these instances. the 14th amendment does not apply. there is the other side to this distinction.

we have individual wrongs that are sanctioned, supported, protected, shielded i state authority. in the paragraph i don't give you on the next page, you also have the language of individual wrongs that rest upon state or authority for their excuse and perpetration. in these instances rights are not in all force as you can get redress. this is a civil rights violation. these individual wrongs have the color of law or custom. they may be punishable under the 14th amendment for it if they state is supporting, excusing

individual wrongs, redress is not available. these individual wrongs get the color of our custom. the remedy for this is the federal prosecution of the individual, of the person, which renders that rights denial in innocuous, bradley's language. the federal prosecution of that individual perpetrator has to be predicated -- bradley's term -- predicated on that state support sanctioning, protecting, excusing. this is the vocabulary of state

neglect and it is the vocabulary that has been circulating in circuit court for over the past decade. that is also under theorized. for folks who want to take that concept and suck it out of history and bring it into today, this is an under-theorized concept. this is not only articulated in the ways people might want it to be. we can go back to the canonical expressions of state action option, where i began. it is the same decision. individual rights is not the subject matter of the amendment. no, but these wrongs have the color of law and there may be federal penalties, federal punishments of those

individuals. this is not a code of municipal law. codes of municipal law take original jurisdiction. it is quite clear the act of 1856 is clearly corrective because it does not take original jurisdiction. the federal penalty is predicated on state support,

sanctioning, shielding protection, excusing. we want to know what individual wrongs are covered. we can go back to this excerpt. he starts with the civil rights category. this is a clue for anybody who understands the language of civil rights and social rights which everybody at the time did. he starts with the civil rights category. he gives us that online one. lines eight and nine, he mentions property, buying and selling, suing and testifying, being a witness, being a juror. lines 10 and 11 he mentions assault, violence. this should sound familiar. this is that core body of rights. you might have notes -- notice that he mentions voting. voting migrates from what were called political rights initially -- political rights granted by the political community, political rights gravitate, move unevenly into the civil rights category after the passage of the 15th amendment trade bradley starts to refer to voting as a civil rights after 1870. for some newspapers it takes longer than that, but that is what is happening here. go back to the public accommodations division. they are invalid under the 14th amendment because they take at a minimum original control of the issue. there is no state action, no state neglect predicate in this legislation. this is municipal legislation. it's bad at a minimum because it is municipal legislation. but, with the court have upheld this legislation had there been a state neglect predicate?