61 N.Y.U. L. Rev. 863 (1986)
Revolutionary Constitutionalism in the Era of the Civil War and Reconstruction

handle is hein.journals/nylr61 and id is 877 raw text is: REVOLUTIONARY CONSTITUTIONALISM IN
THE ERA OF THE CIVIL WAR AND
RECONSTRUCTION
ROBERT J. KACZOROWSKI*
The meaning and scope of the fourteenth amendment and the Civil Rights Act of 1866
remain among the most controversial issues in American constitutional law. Professor
Kaczorowski contends that the issues have generated more controversy than they war-
rant, in part because scholars analyzing the legislative history of the amendment and
statute have approached their task with preconceptions reflecting twentieth century
legal concerns. He argues that the most important question for the framers was
whether national or state governments possessed primary authority to determine and
secure the status and rights of American citizens. Relying on records of the congres-
sional debates as well as letters, newspaper clippings, and other contemporaneous evi-
dence of the views of congressmen, federal judges, and federal attorneys, Professor
Kaczorowski describes a Republican consensus that such power must ultimately lie in
the national government He concludes that this Republican commitment to the pri-
macy of national citizenship helps explain why racist politicians, with the support of
racist constituents, worked to ensure legal protection for the civil rights of blacks.
INTRODUCTION
The Civil War and Reconstruction era witnessed a heroic effort by
federal judges and legal officers in the South to protect the civil rights of
American citizens.' This effort was successful in diminishing, if not elim-
inating, the use of terrorism and violence as political weapons. Federal
prosecutions of civil rights violators decimated the Ku Klux Klan and
brought a period of relative peace to Southern life. Klansmen were pros-
ecuted in their individual capacities for violating citizens' Bill of Rights
guarantees and for acts such as murder and assault that would normally
be punished under state criminal codes. These prosecutions were
brought under Reconstruction civil rights statutes2 enacted to implement
* Professor of Law, Fordham University. B.S.C., 1960, Loyola University (Chicago);
M.A., 1967, DePaul University; Ph.D., 1971, University of Minnesota; J.D., 1982, New York
University.
I am grateful for the helpful comments of Eric Foner, Kermit Hall, Robert Martineau,
Paul Murphy, William Nelson, George Rappaport, David Reiser, Joseph Tomain, and partici-
pants in the New York University School of Law Colloquium on Legal History.
I See generally R. Kaczorowski, The Politics of Judicial Interpretation: The Federal
Courts, Department of Justice and Civil Rights, 1866-1876 (1985). The author is also grateful
to the University of Cincinnati, which provided research funds to assist in the writing of this
Article.
2 See, e.g., Ku Klux Klan Act of 1871, ch. 22, 17 Stat. 13; Enforcement Act of 1870, ch.
114, 16 Stat. 140; Civil Rights Act of 1866, ch. 31, 14 Stat. 27.
863

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