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112 Colum. L. Rev. 1585 (2012)
The Supreme Court and the History of Reconstruction - And Vice-Versa

handle is hein.journals/clr112 and id is 1653 raw text is: PANEL II: RECONSTRUCTION REVISITED THE SUPREME COURT AND THE HISTORY OF RECONSTRUCTION-AND VICE-VERSA Eric Foner* Beginning in the 1930s, Reconstruction historiography underwent a dramatic change. Early-twentieth-century historians of Reconstruction viewed aggressive federal intervention to protect the civil rights of freed slaves as a mistake, and they celebrated the Compromise of 1877 and the subsequent retreat from Reconstruction. These historians also praised the decisions of the Supreme Court that offered narrow interpretations of Congressional power under the Thirteenth, Fourteenth, and Fifteenth Amendments. Modern historians reject the works of early historians of Reconstruction as incomplete, unbalanced, and often racist. Beginning with WE.B. Du Bois in the 1930s, revisionist historians have reexamined the Reconstruction Era and developed a narrative that praises the Republicans who sought to protect the rights of freed slaves and the freed slaves themselves, who fought for civil and political rights during Reconstruction and its aftermath. Unfortunately, the legal pro- fession and the courts have been slow to embrace the revolution in Reconstruction historiography. This Essay argues that a historical narrative of Reconstruction re- pudiated by historians continues to exert an outsized influence on Supreme Court jurisprudence, and that judicial unwillingness to over- turn flawed Reconstruction-era precedents hinders the cause of equality before the law even today. It suggests that the overdue judicial repudia- tion of precedents resting, in part, on a faulty interpretation of Reconstruction's history would have a salutary effect on the Supreme Court's Thirteenth and Fourteenth Amendment jurisprudence. Reconstruction was a period of profound change in all aspects of American life. The fundamental question that agitated the country in the period after the Civil War was how our society would respond to the de- struction of slavery. What system of labor would replace slave labor? What * Dewitt Clinton Professor of History, Columbia University. The author thanks Professor Randall Kennedy of the Harvard Law School and Linda Tvrdy, a graduate stu- dent in the Columbia University Department of History, for many helpful discussions of the issues raised in this Essay. The author would also like to thank the editors and staff of the Columbia Law Review for their revisions. 1585

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