The Enforcement Acts Congress responded to the wave of racial violence and intimidation that swept the South to deny African Americans their voting rights with protective legislation under the Enforcement Clause of the Fifteenth Amendment. The Enforcement Act of 1870 (First Ku Klux Klan Act) provided “[t]hat all citizens of the United States who are or shall be otherwise qualified by law to vote at any election by the people in any State... shall be entitled and allowed to vote at all such elections, without distinction of race, color, or previous condition of servitude”. It criminalized the use of force, violence, or intimidation to prevent citizens from voting. The Enforcement Act of 1871 (Third Ku Klux Klan Act), passed pursuant to the Enforcement Clause of the Fourteenth Amendment, made it a federal crime to deprive citizens of their civil rights under the Fourteenth Amendment.

Collector v. Day (1871) In Collector v. Day, the Supreme Court invalidated a federal income tax on the salaries of state judges on the ground that the state and federal government were separate sovereignties with reciprocal immunity from taxation.

The Slaughter-House Cases (1873) and Civil Rights In the Slaughter-House Cases, the Court narrowly construed the protection afforded by the Fourteenth Amendment’s protections. By a 5 to 4 vote, the Court held the rights arising from state and federal citizenship are different, and that the Privileges or Immunities Clause protects only the latter. These were defined so narrowly that the guarantees of the federal Bill of Rights were left unprotected against state abridgment. Although the case did not directly involve the rights of African Americans, the narrow interpretation of the amendment set the stage for encroachments upon the civil rights of blacks in the late nineteenth century.

Voting Rights in the South In United States v. Reese (1876), the Supreme Court dismissed the prosecution of two Kentucky election officials for violating the Enforcement Act of 1870. Chief Justice Waite held that because they had acted as individuals and not on behalf of the state, they could not be prosecuted by the federal government. The Fourteenth Amendment applied only to state actions, not actions by individuals. By contrast, in Ex parte Yarbrough (1884) the Court upheld the conviction of a Georgia man for conspiring to intimidate a black voter in a federal election. The ruling was based not on the limited authority of Congress under the Fifteenth Amendment but on Article I of the Constitution, which confers upon Congress plenary power to regulate federal elections. In Reese, the Court also held that the Fifteenth Amendment did not confer suffrage rights on anyone, but only prevented the state and federal governments from disfranchising anyone on grounds of race or prior servitude. This enabled the southern states to abridge the voting rights of African Americans by passing voting restrictions that were not specifically based on race or prior servitude. Literacy tests and poll taxes, for example, applied to all voters, but were implemented in ways that discriminated against blacks. Such devices were nevertheless upheld as constitutional in Williams v. Mississippi (1898).

Women’s Rights and the Fourteenth Amendment Proponents of women’s rights contended that the guarantees the Fourteenth Amendment applied to women as well as to male African Americans. But in Bradwell v. Illinois (1873) the Supreme Court held that the amendment did not prevent the states from excluding women from the practice of law. The Court upheld the exclusion on the ground that the practice of law was not among the privileges or immunities protected by the Fourteenth Amendment. The Court also held, in Minor v. Happersett (1875), that the states could deny women the right to vote because the Fourteenth Amendment only protected privileges or immunities that predated its ratification. Because women had neither the right to vote nor the right to practice law prior to the amendment, the rights claimed were not constitutionally protected.

The Supreme Court and Racial Violence In United States v. Cruikshank (1876) and United States v. Harris (1883), the Supreme Court invalidated key provisions of the Enforcement Acts of 1870 and 1871. In Cruikshank, the Court held that the protection afforded by the Fourteenth Amendment applied only to official actions by the states, not to violations perpetrated by individual citizens. In. Harris, the Court underscored the distinction in dismissing federal charges against defendants who had participated in a lynch mob, ruling that the Fourteenth Amendment was “a guarantee of protection against the acts of the State Government itself . . . not a guarantee against the commission of individual offenses.” The federal government had no jurisdiction over the latter.

Civil Rights Cases (1883) The Civil Rights Cases involved challenges to the provisions of the Civil Rights Act of 1875 guaranteeing equal access to public accommodations and conveyances regardless of race or prior servitude. The Court held that because the Fourteenth Amendment only prohibited states—not private individuals—from engaging in racial discrimination, Congress had no authority to proscribe discrimination by individuals.

Racial Discrimination and Jury Trial In Strauder v. West Virginia (1880), the Court invalidated a statute barring blacks from jury service as a violation of the Equal Protection Clause of the Fourteenth Amendment. The decision was undermined by Virginia v. Rives (1880) upholding the conviction of an African American by an all-white jury. Because the absence of blacks from the jury could not be attributed to official state policy, there was no demonstrable Fourteenth Amendment violation.

Separate but Equal Doctrine Until Plessy v. Ferguson (1896), the Supreme Court had only upheld private acts of racial discrimination by individuals against Fourteenth Amendment challenges. But in Plessy the Court for the first time upheld official racial discrimination by a state. At issue was a Louisiana law requiring railroads to provide “equal but separate accommodations for the white, and colored races.” Speaking for the majority, Justice Brown held that so long as equal accommodations were provided for both races, there was no denial of equal protection of the laws in violation of the Fourteenth Amendment. The Court thus laid down the separate but equal doctrine that for the next half-century legalized the compulsory separation of the races throughout the South.

Changes in Court Personnel In 1869, Congress increased the membership of the Supreme Court from seven to nine justices. President Grant appointed William Strong and Joseph Bradley, both railroad lawyers, to the new posts. When Justice Nelson retired, Grant appointed Ward Hunt to replace him. And when Salmon P. Chase died in 1873, Grant appointed Morrison Waite, a corporation lawyer, to be Chief Justice. President Rutherford B. Hayes nominated John Marshall Harlan to the Court in 1877. Although once a slaveholder, Harlan became a steadfast champion for the rights of African Americans while on the Court. Hayes also appointed William B. Woods, Samuel Blatchford, and Stanley Matthews. Matthews’s background as a lawyer and lobbyist for railroad interests made him a controversial choice, but he was ultimately confirmed by the Senate. The Court became increasingly conservative with the appointment of eight new justices between 1888 and 1896. President Grover Cleveland nominated Lucius Q.C. Lamar, a former Confederate colonel, when Justice Woods died. And when Chief Justice Waite died, Cleveland replaced him with Melville Fuller. President Benjamin Harrison nominated David J. Brewer, Henry Brown, George Shiras, Jr., and Howell R. Jackson—all conservatives—to associate justiceships. Grover Cleveland, who was re-elected in 1892 after losing to Harrison in 1888, continued the conservative trend by appointing Edward D. White, a former Confederate officer, and Rufus H. Peckham, an influential corporation lawyer. This was the composition of the Court that presided over the rollback on the protection afforded African Americans by the Fourteenth and Fifteenth Amendments.