Abstract

In the widely criticized Civil Rights Cases (1883), the Supreme Court invoked federalism to overturn a national public accommodation law and spawned more than a century of commentary. Observing history through the lens of the Civil Rights Era, modern readers often assume that the federalism commitments in the Civil Rights Cases were thinly veiled racism. But federalism was a near-universal value of political elites of the Era: the very elites that wrote and ratified the Fourteenth Amendment. The Civil Rights Cases upheld the (ultimately unsuccessful) civil rights compromise envisioned by contemporary elites: federalism would be respected so long as states did not violate or neglect civil rights. The compromise required two elements to succeed. First, the federal government must protect Black Americans' voting power and backstop their civil rights. Second, Black Americans would use their political power to protect their rights at the state level. This Article shows how Black voters and activists held up their end of the deal.

The Civil Rights Cases triggered a Black popular constitutionalism movement, led by Black policy entrepreneurs, that operated at the state level across the nation. This extra-judicial popular response forged a synthesis: federalism principles would be supported; but at the same time, access to public accommodation would be recognized as a civil right. So understood, the Civil Rights Cases provide an alternative justification for federal efforts to suppress Jim Crow in the 1960s. It provides a narrower and more historically rigorous foundation to protect the advances Black political movements have achieved in the decades since the Civil Rights Cases. It also complicates the relationship between federalism and civil rights.

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